Penfield City Zoning Code
ARTICLE VI
Overlay Districts
§ 250-6.1 Environmental Protection Overlay Districts (EPOD).
[Amended 3-5-2025 by L.L. No. 2-2025]
Purpose.
The purpose of the Environmental Protection Overlay Districts (EPOD) established in this article is to provide special controls over land development located in sensitive environmental areas within the Town of Penfield. These overlay districts and their associated regulations are designed to preserve and protect unique environmental features within the Town as much as possible, including but not limited to wetlands, steep slopes, woodlands, floodplains, and streams.
The regulations contained in each EPOD are intended to supplement the development regulations contained in the underlying zoning district. Conformance with the applicable EPOD regulations must be demonstrated by the applicant or developer as part of the project approval process.
Environmental Protection Overlay District (EPOD) permits shall not be issued for any prohibited uses, as defined in the underlying zoning district or elsewhere in this chapter.
Establishment of district. In order to address the specific goals listed in Subsection A of this section, the Town of Penfield has established the following EPODs:
Wetland
Steep Slope
Woodland
Floodplain
Stream
EPOD maps. The approximate locations and boundaries of all EPODs shall be delineated on a set of maps on file in the Town Clerk's office ("Town of Penfield EPOD maps"). The mapped features shall be assessed on an annual basis and updated by Town staff based on information and materials provided by the state and federal agencies including but not limited to: New York State Department of Environmental Conservation (NYSDEC); United States Army Corps of Engineers (USACOE); and the Federal Emergency Management Agency (FEMA). The Town of Penfield EPOD Maps shall be used for reference purposes only and shall not be used to delineate specific or exact boundaries of the various overlay districts. Field investigations and/or other environmental analyses may be required by the applicant in order to determine whether or not a particular piece of property is included within one or more of the overlay districts.
Review and interpretation of district boundaries.
The authorized official shall be responsible for reviewing and interpreting Environmental Protection Overlay District boundaries. In making a determination of EPOD boundaries, the authorized official may request the assistance of other town department(s), county, state or federal agencies, and/or town consultants.
In instances where the boundary of an EPOD intersects with any other overlay district, conformance with all applicable zoning regulations is required.
Exempt activities. The following activities are exempt from the permit procedures of the article, subject to a determination by the authorized official:
Lawn care and maintenance.
Gardening activities.
Tree and shrub care and maintenance.
Removal of dead or deteriorating trees and vegetation.
Removal of buildings and accessory structures; excluding any structure associated with steep slope management.
Repair and maintenance of existing buildings and accessory structures.
Reconstruction of buildings and/or accessory structures damaged by a natural disaster.
Repair and maintenance of utilities.
Repair and maintenance of established drainage systems.
Customary agricultural activities, excluding construction of new structures.
Public health activities, orders, and regulations of the New York State Department of Health, Monroe County Department of Health, or other agencies, undertaken in compliance with the New York State Environmental Conservation Law.
Activities subject to the review jurisdiction of the New York State Public Service Commission or the New York State Board on Electric Generation Siting and the Environment, under the provisions of Article VII of the New York Public Service Law.
Any actual or ongoing emergency activity that is immediately necessary for the protection and preservation of life, property, or natural resource values.
Permit application procedures.
EPOD development permit:
An EPOD development permit shall be required before the commencement of any regulated activity or the issuance of any building permit for regulated development in a designated Environmental Protection Overlay District within the Town of Penfield.
Application for permit.
Applications for EPOD development permits shall be made in writing to the appropriate board or authorized official having jurisdiction in the matter, on forms provided by the Town Planning or Engineering Departments. Such an application shall be made by the property owner or his/her agent and shall be accompanied by any materials or information deemed appropriate by the Town, including but not limited to a scaled site plan prepared and certified by a licensed engineer or land surveyor (one inches equals 50 feet), which contains the following minimum information:
A location plan and boundary line survey of the property.
The location of all EPODs, designated town open space, town, county or state parkland within the proposed project area and within 200 feet of the project area boundary.
The location of all existing and proposed buildings, structures, utility lines, sewers, water service, and stormwater infrastructure within the proposed project area and within 200 feet of the project area boundary.
The location of all existing and proposed impervious surfaces such as driveways, sidewalks, etc., within the proposed project area and within 200 feet of the project area boundary.
Existing and proposed contour levels at one-foot intervals for the property, unless such property is located within a steep slope protection district, whereby contour levels may be shown at two-foot intervals.
The boundary limit of all earthwork.
The location of all existing and proposed water bodies within the proposed project area and within 200 feet of the project area boundary.
Each application for an EPOD development permit shall be accompanied by the appropriate fee(s) as identified on the Town's adopted fee schedule. The fee(s) shall be in addition to any other fees required for the development under this chapter and/or the Town Code.
Permit review.
For projects that only require an EPOD permit or an administrative site plan approval, EPOD applications shall be reviewed administratively by the Town Planning and Engineering Departments.
Town staff, members of the board having jurisdiction or their authorized agents may conduct inspections on a property while it is under review.
The authorized official or board having jurisdiction shall have the authority to grant or deny an EPOD development permit, subject to the standards, criteria, other regulations contained in this chapter and regulations contained in the State Environmental Quality Review Act (SEQRA). The authorized official or the board having jurisdiction may also request an engineer's report pertaining to such permit applications.
The authorized official or board having jurisdiction shall consider whether there is any reasonable alternative, including but not limited to cluster subdivision utilizing Town Law § 278, for the proposed regulated activity to take place on another portion of the site to avoid the EPOD.
The applicant for an EPOD permit shall have the burden of demonstrating that the proposed regulated activity will be conducted in accordance with the standards and requirements set forth in this chapter, as required by the authorized official or board having jurisdiction.
Appeals from decisions of the authorized official or the board having jurisdiction regarding the granting or denying of any EPOD development permit or the conditions for approval of such a permit shall be made to the Town Board.
Any development permit issued by the authorized official or the board having jurisdiction, in accordance with the provisions of this article may be issued with conditions. Such conditions may be attached as are deemed necessary to ensure the preservation and protection of environmentally sensitive areas and to ensure compliance with the policies and provisions of this article. Every permit issued pursuant to this article shall contain the following conditions:
The authorized official, Town Engineer/consulting engineer and/or other appropriate Town official shall have the right to inspect the project.
The permit shall expire one year from the date of issuance. The board having jurisdiction may extend the permit at the written request of the applicant.
The permit holder shall notify the authorized official or other appropriate Town official of the date on which project construction is to begin, at least five days in advance of such date of construction.
Requirement for letter of credit/certified check.
Following approval of an application for an EPOD development permit, and prior to the issuance of any building or other Town permit, the applicant shall furnish the Town with an irrevocable letter of credit or certified check in an amount to be reviewed and approved in writing by the Town Engineer/consulting engineer, and sufficient to cover the costs of compliance, contingencies and inspection of the various specifications and conditions of the development permit. The purpose of the letter of credit or certified check shall be to ensure that all items, activities or structures specified in the plans approved by the authorized official or the Town Planning Board are constructed or carried out in accordance with such plans and specifications and other appropriate requirements of the Town of Penfield.
The irrevocable letter of credit or certified check shall continue in full force and effect until such time as the authorized official has certified that, based on a site inspection, all specifications, requirements, and permit conditions have been completed and/or complied with, whereupon the letter of credit or certified check shall be released to the applicant. The authorized official, upon recommendation of the Town Engineer/consulting engineer, or other appropriate department or authorized official, may deduct or withhold an amount from the letter of credit or certified check sufficient to cover the cost of noncompliance with any requirements, specification, or permit condition and/or release the Town from any liability resulting from such noncompliance.
Suspension or revocation of permits.
Suspension. An authorized official may temporarily suspend an EPOD permit if the project is not complying with the terms or conditions of such permit. Suspension may be lifted after a plan for corrective action(s) has been reviewed and approved by the authorized official. All work within an EPOD shall cease immediately upon suspension of a permit.
Revocation. In cases where there is evidence that the applicant has not complied with the terms or conditions of an issued EPOD permit, has exceeded the authority granted in the permit, or has failed to undertake the project in the manner set forth in writing, the authorized official shall provide written notice to the permit holder outlining the reasons the permit is being referred to the Town Planning Board for revocation.
Written notice must be provided at least five days before the Planning Board meeting where the recommended revocation will be reviewed.
The Planning Board shall provide its findings and reasons, in writing, for revoking a permit issued pursuant to the section. The authorized official shall forward a copy of said findings to the applicant. All work within the EPOD shall immediately cease upon revocation of an EPOD permit.
Wetland EPOD.
Purpose. The Wetland EPOD regulations are designed to preserve, conserve, and protect freshwater wetlands located within the Town of Penfield and ensure regulated activities receive the required EPOD permit(s) as defined and described herein. The Town will defer to state wetland regulations set forth in New York State Environmental Conservation Law, as well as the federal wetland permitting requirements as established by the United States Army Corps of Engineers (USACOE). These areas shall be protected as invaluable natural resources that provide flood protection, wildlife habitats, recreational and open space, erosion and pollution control, and protection and recharging of groundwater supplies.
Delineation of district boundaries. The boundaries of the Wetland Protection Overlay District shall be delineated on the Official Town of Penfield EPOD Maps and shall include the approximate location of jurisdictional wetland areas identified by the New York State Department of Environmental Conservation (NYSDEC) and the U.S. Fish and Wildlife Service. For regulated activities within a Wetland EPOD, including any established buffer areas, the applicant shall provide a current wetland delineation as part of their application. The Town shall ensure that any application that falls within NYSDEC and/or USACOE jurisdiction obtains the required state and/or federal permits required prior to issuance of EPOD permit.
Regulated activities. No regulations contained within this article may supersede the provisions set forth in any state or federal regulations pertaining to regulated wetlands, as amended or changed. Activities exempt from the permit procedures of this article are provided in § 250-6.1E titled "Exempt activities." The following regulated activities require an EPOD permit.
Any form of draining, dredging, excavation, or removal of any natural or previously deposited materials directly or indirectly from a wetland.
Any form of dumping, filling, or depositing any material either directly or indirectly within a wetland.
The erection or placement of any structures, roads, or any man-made materials within the wetland.
Stormwater and/or waste management facilities, including but not limited to installing a pond, biofilter, rain garden, septic tank, running a sewer outfall, discharging sewage treatment effluent or other liquid wastes into a wetland.
Any activity that impairs the natural function of wetlands, whether the impairing activity is located within the wetland or not.
Any activity regulated by Environmental Conservation Law § 24-0701.
Development standards and permit conditions.
A Wetland EPOD permit shall only be granted if the applicant can adequately demonstrate that the regulated activity will not produce any of the following adverse impacts:
Alter groundwater reservoir capacities.
Decrease watercourse flood-carrying capacities.
Deteriorate water or air quality.
Alter water retention capabilities.
Increase downstream siltation.
Adversely alter the natural wildlife balance.
Impair any natural function of the wetland.
Steep Slope EPOD.
Purpose. The purpose of the Steep Slope EPOD is to minimize the impacts of regulated activities on steep slopes in the Town of Penfield. Steep slope areas are sensitive and can be prone to soil erosion and sedimentation, destruction of vegetation, increased runoff rates, and slope failure. The regulations contained in this district are intended to protect steep slope areas. These regulations are designed to minimize the disturbance or removal of existing vegetation, prevent increased erosion and runoff, maintain established drainage systems, locate development where it is less likely to cause future slope failures and to retain, as much as possible, the natural character of these areas.
Delineation of district boundaries. The boundaries of the Steep Slope EPOD shall be delineated on the Official Town of Penfield EPOD maps and shall include any area with a slope of 15% or greater. A check zone of 25 feet from the mapped Steep Slope EPOD boundaries will also be identified on the map. To more accurately delineate a Steep Slope EPOD boundary, an authorized official or Town Engineer/consulting engineer may consult other data sources including, but not limited to, soil survey reports, topographic maps, field surveys, and other expert data sources deemed appropriate by the Town Engineer.
Regulated activities. No person shall conduct any of the following regulated activities in a Steep Slope EPOD until an EPOD permit has been obtained. Activities exempt from the permit procedures of this article are provided in § 250-6.1E titled "Exempt activities." The following regulated activities require an EPOD permit.
Clearing of or construction on any land area within the EPOD, including construction or clearing activities related to providing equipment access on the site.
The construction or placement of any sewage disposal system, including individual sewage disposal systems, septic tanks, septic drainage, or leach fields.
Filling, cutting, or excavating operations.
Discharge of stormwater and/or construction and placement of stormwater runoff systems.
Timber harvesting for personal or commercial use.
Development standards and permit conditions.
A Steep Slope EPOD shall be issued by the authorized official or the board having jurisdiction if the applicant can adequately demonstrate the following applicable requirements have been met.
The stable angle of repose of the soil classes found on the site has been used to determine the proper placement of structures and other development-related facilities within the plateau area. Site-specific calculations of the stable angle of repose for the site shall be determined by the applicant's professional soil scientist or engineer. The calculations shall utilize the soil classes and nomenclature contained in the soil surveys provided by Natural Resources Conservation Service (NRCS) or other designated federal or state agency. The property's slope and soil conditions will be based on soil borings as well as high-intensity soil survey data provided by the applicant.
The stability of soils will be maintained or increased to adequately support any construction thereon or to support any landscaping, agricultural, or similar activities. This shall be documented by soil-boring data provided by a qualified testing laboratory or engineer and paid for by the applicant.
Approved activity shall not cause erosion or slipping of soil, or cause sediment to be discharged off the property or into any water bodies, streams, tributaries, wetlands and/or floodplain areas.
The area of disturbance is minimized to the greatest extent practicable.
Trees and plant life located on the slopes outside the area of disturbance for approved activities shall not be removed or damaged. Plants or other acceptable ground cover shall be reestablished in disturbed areas immediately upon completion of development activity so as to prevent any of the harmful effects set forth above to maintain the natural scenic characteristics of any steep slope. Proposed plantings in the steep slope areas shall be reviewed and approved by the Town Engineer or a designated consultant.
Impervious access on steep slopes shall be provided with ramp slopes that comply with the Town's Construction and Design Criteria, as amended or changed. Disturbed nonroadway areas shall be stabilized and adequately drained.
Construction of erosion protection structures, particularly along the water side of eroding bluffs, shall provide protection of bluff features according to the following standards:
All erosion protection structures shall be designed and constructed according to generally accepted engineering principles found in the New York State Standards and Specifications for Erosion and Sediment Control (NYS Blue Book), as amended or changed.
The construction, modification, or restoration of erosion protection structures shall be designed to avoid measurable increases in erosion at the development site or other locations.
The design shall prevent adverse effects to natural protective features, existing erosion protection structures, and natural resources such as significant fish and wildlife habitats.
Drainage of stormwater shall not cause erosion or siltation, contribute to slope failures, pollute groundwater, or cause damage to or flooding of property. Drainage systems shall be designed and located to ensure slope stability.
Any grading, excavating, or other soil disturbance conducted on a steep slope shall not direct surface water runoff over the receding edge during construction.
Woodland EPOD.
Purpose. The purpose of the Woodland EPOD is to preserve and protect woodlands within the Town of Penfield by regulating or controlling development in those areas, and by requiring review and EPOD permit approval prior to project commencement.
Delineation of district boundaries. The boundaries of the Woodland EPOD shall be delineated on the Official Town of Penfield EPOD maps and shall include all areas in the Town of Penfield of five or more contiguous acres of tree canopy coverage. Areas that involve active orchards shall not be included in the Woodland EPOD.
Regulated activities. Earthwork and/or tree removal on 0.5 acres or more in a Woodland EPOD shall require an EPOD permit to be obtained. No regulated activity shall be segmented, divided, or phased within a Woodland EPOD for the purpose of avoiding the permitting requirements. Activities exempt from the permit procedures of this article are provided in § 250-6.1E titled "Exempt activities."
Development standards and permit conditions.
Any application for a permit to undertake a regulated activity within a Woodland EPOD in the Town of Penfield shall be required to adequately demonstrate to the authorized official or the board having jurisdiction that the proposed activity will not produce long-term adverse impacts to any of the following:
Any application for a permit to undertake a regulated activity within a Woodland EPOD in the Town of Penfield shall be subject to the Town's Woodland EPOD Replacement Policy.
Additional permit application requirements for development within the Woodland EPOD.
In planning site development plans, the applicant shall preserve as much of the original site vegetation, including understory, brush, and shrubs, as possible. The use of Town Law § 278 should be considered when dealing with sites where stands of mature trees are present.
Following approval and prior to commencement of earthwork, the applicant shall demonstrate compliance with the approved limits of disturbance by delineation with orange snow fencing or other acceptable means of delineation of these boundaries, at the discretion of the Planning Board, Town Board, or authorized official. The limits of disturbance shall embrace all tree canopy areas and extended root systems to be protected.
The applicant shall install protective barriers around each tree or group of trees intended for preservation within the area of disturbance prior to the start of any construction or may, with the approval of the Planning Board, Town Board, or authorized official erect protective barriers around sections in which several trees are located. The barriers shall remain in place and be kept in good repair until all construction has been completed and removal of the barriers has been authorized by the Town Engineer. This shall be covered in an appropriate section of a letter of credit.
Trees which have been designated for preservation, including supplemental trees, shall be deemed required site improvements, and their preservation and replacement, as necessary, including the replacement of trees harmed during construction, shall remain the responsibility of the applicant. The trees required to be preserved shall be covered in the Letter of Credit. Prior to release of the letter of credit, the trees shall be inspected by the authorized official to ensure that they have not been irreparably harmed.
Once all earthwork has been done, the applicant shall have the scheduled trees installed in the locations designated on the approved landscape plan.
Floodplain EPOD.
Purpose. The Floodplain EPOD regulations are designed to protect areas of the Town located in floodplains and floodways in order to protect the health, safety, and welfare of residents. These regulations, in conjunction with the regulations contained in Chapter 120 of the Penfield Town Code (Flood Damage Prevention) establish the Town's conformance with the development standards and guidelines set forth by the Federal Emergency Management Agency (FEMA).
Delineation of district boundaries. The boundaries of the Floodplain Protection Overlay District shall be delineated on the Official Town of Penfield EPOD maps, and as further identified in the FEMA Flood Insurance Rate Map (FIRM) and Flood Hazard Boundary Map, as amended or changed. Such maps are incorporated by reference herewith and declared to be a part of this subsection, and include any future versions, replacements, or additions to mapping required for the Town of Penfield's participation in the FEMA Flood Insurance Program.
Stream EPOD.
Purpose. The purpose of the Stream EPOD regulations is to preserve and protect streams, creeks, and tributaries located within the Town of Penfield by regulating or controlling development in those areas and by requiring review and permit approval prior to commencement of any activity.
Delineation of district boundaries. The boundaries of the Stream EPOD shall be delineated on the Official Town of Penfield EPOD maps and shall include portions of properties within 75 feet of the center line of a natural or man-made stream, creek or tributary as classified by NYSDEC. The boundary shall not include drainage swales.
Regulated activities. No person shall conduct any of the following regulated activities in a Stream EPOD until an EPOD permit has been obtained. Activities exempt from the permit procedures of this article are provided in § 250-6.1E titled "Exempt activities." The following regulated activities require a Stream EPOD permit.
Clearing or filling, dredging, excavating, depositing of natural or man-made materials, or engaging in any type of construction on areas within the Stream EPOD boundaries.
The construction or placement of any septic tank or septic drainage field.
Any activity that would alter the natural flow pattern of the stream, creek, or tributary.
Development standards and permit conditions.
Any application for a permit within a Stream EPOD shall be required to adequately demonstrate that the proposed regulated activity will not adversely impact the following now or in the future:
When altering the natural flow pattern of a natural or man-made watercourse, the applicant shall demonstrate that the appropriate NYSDEC permit has been granted.
§ 250-6.2 Historic Preservation Overlay District (HPOD).
[Amended 2-3-2021 by Res. No. 21T-066; 8-7-2024 by L.L. No. 7-2024]
Authorization. In accordance with General Municipal Law § 96-a, entitled "Protection of historical places, buildings and works of art," the Town Board of the Town of Penfield has authority to provide by regulations, special conditions and restrictions for the protection, enhancement, perpetuation and use of places, districts, sites, buildings, structures, works of art and other objects having special character or special historical or other aesthetic interest or value. Pursuant to that authority, the Town Board has prepared and adopted this section, setting forth standards to be followed in historic preservation. The Penfield Historic Preservation Board, established as set forth in Chapter 11, Article VIII, of the Town Code, is authorized to designate Penfield landmarks upon consent of the owner or, upon the Board's initiative, recommend to the Town Board that a site be designated a landmark. It may also recommend to the Town Board that certain areas of the Town be designated as Historic Preservation Overlay Districts, and is authorized to grant certificates of appropriateness for proposed changes to Penfield landmarks and properties within Historic Preservation Overlay Districts, and for proposed new construction in Historic Preservation Overlay Districts and on landmark sites.
Purpose.
The purpose of these historic preservation regulations is to:
Preserve the historical and architectural character of certain sites, structures or districts [hereinafter collectively referred to as "property(ies)"] within the Town of Penfield.
Prevent impairment of or injury to the historical, architectural and cultural value to the community of the property(ies).
Provide that a reasonable degree of control may be exercised over alterations to such property(ies) and over the alteration, architectural design and construction of structures erected or to be erected on any such sites or in such districts.
Foster civic pride in the accomplishments of the past.
Protect and enhance Penfield's attractiveness to visitors.
Support and stimulate the economic activities provided by tourism.
Stabilize and improve property values.
Ensure the harmonious, orderly, and efficient growth and development of the Town.
Historic preservation (HP) regulations are not intended to be substituted for other zoning regulations, but are to be superimposed on the primary zoning regulations and represent an additional level of review and regulation related specifically to the preservation of Penfield landmarks, landmark sites and all properties within an Historic Preservation Overlay District.
Criteria and procedures for designation of landmarks.
The Historic Preservation Board may, with the consent of the property owner, after a public hearing, designate an individual property as a landmark if it possesses special character or historic or aesthetic interest or value as part of the cultural, political, economic, or social history of the locality, Town, state or nation, or if it is identified with historic persons or events, or if it embodies the distinguishing characteristics of an architectural style, or is the work of a designer whose work has significantly influenced an age, or, because of unique location or physical characteristics, represents an established and familiar visual feature of the neighborhood. In making its determination, the Board may also consider staff reports, public comments and other evidence obtained outside of the public hearing in addition to all evidence presented at the public hearing.
The Town Board, without the consent of the property owner, after public hearing, and after considering any recommendation from the Historic Preservation Board, may designate an individual property as a landmark in accordance with the same criteria in Subsection C(1). In making its determination, the Board may also consider staff reports, public comments and other evidence obtained outside of the public hearing in addition to all evidence presented at the public hearing.
Criteria and procedures for designation of Historic Preservation Overlay Districts.
The Town Board may designate a group of properties as an Historic Preservation Overlay District if, after a public hearing, it determines that it contains properties which meet one or more of the above criteria for designation as a landmark and, by reason of possessing such qualities, constitutes a distinct section of the Town.
Determining whether certain properties should be designated as an Historic Preservation Overlay District shall be made using the same criteria and review as for landmark designation and, in addition, considering the collective merits of all structures within a district's boundaries and their interrelationship. Before making a determination, the Town Board must consider any recommendation from the Historic Preservation Board regarding such designation. In making its determination, the Board may also consider staff reports, public comments and other evidence obtained outside of the public hearing in addition to all evidence presented at the public hearing. Once the Town Board has issued notice of a public hearing of a proposed designation, no building permits shall be issued until the designation decision has been made.
The Town of Penfield shall forward notice of each property designated as a landmark to the owner(s). The boundaries of each designated landmark or Historic Preservation Overlay District shall be recorded in the Monroe County Clerk's office by the Town of Penfield. Notice shall also be kept in the Town Clerk's office for public inspection.
Regulations.
Nothing in this chapter shall be construed to prevent the ordinary maintenance and repair of any exterior architectural feature of a landmark or property within an Historic Preservation Overlay District that does not involve a change in design, material or outward appearance. No person shall carry out any exterior alteration, restoration, reconstruction, demolition, new construction, or moving of a landmark or property within an Historic Preservation Overlay District, nor shall any person make any material change in the appearance of such property, its windows and shutters, exterior light fixtures, signs, sidewalks, fences, steps, paving, changes in grade, or other exterior elements which affect the appearance and cohesiveness of the landmark or Historic Preservation Overlay District, without first obtaining a certificate of appropriateness from the Historic Preservation Board.
Prior to the commencement of any work requiring a certificate of appropriateness, the owner shall file an application with the Historic Preservation Board. The application shall contain the name, address and telephone number of the applicant, photographs of the property, scale plan views and elevation drawings of proposed changes, including relationship to adjacent properties, samples of color or materials to be used, and any other information which the Board may need in order to visualize the proposed work.
No building permit shall be issued for the proposed work until a certificate of appropriateness has first been issued. The Board shall approve, approve with conditions or deny the application within 60 days from receipt of the completed application. All decisions of the Board shall be in writing and shall state the reasons for its determination. A copy shall be sent to the applicant and a copy shall be filed with the Town Clerk's office for public inspection. Certificates of appropriateness shall be valid for 12 months, after which time the owner must reapply unless the subject matter of the certificate of appropriateness has been completed within said 12 months.
After a certificate of appropriateness is granted by the Historic Preservation Board, the Town Clerk shall issue said certificate of appropriateness to the applicant(s) pursuant to this subsection.
Criteria for issuance of certificate of appropriateness.
In making a decision on a certificate of appropriateness, the Historic Preservation Board shall not consider changes to interior spaces unless evidence of such changes appears on the exterior. The Board's decision shall be based on the following elements:
Any alteration of existing properties shall be compatible with their historic character, as well as with the surrounding properties.
Properties which contribute to the character of the Historic Preservation Overlay District shall be retained with their historic features altered as little as possible.
New construction shall be compatible with other properties in the district in which it is located.
Consideration shall be given to approved municipal plans affecting the property(ies).
In applying the principle of compatibility, the Historic Preservation Board shall consider the following factors:
The general design, character and appropriateness to the property of the proposed alteration or new construction.
The scale and size of the proposed alteration or new construction in relation to the property itself, surrounding properties, and the neighborhood.
The texture, materials, and color and their relation to similar features of other properties in the neighborhood.
The visual compatibility with surrounding properties, including the proportion of the property's front facade, proportion and arrangement of shutters, windows and other openings within the facade, roof shape, and the rhythm of the spacing of other properties on the streets, including setbacks.
The importance of historic, architectural, or other features to the significance of the property.
Special considerations for existing buildings. For existing buildings, the Historic Preservation Board shall consider the availability of materials, technology, and craftsmanship that is in keeping with existing styles, patterns, textures and overall detailing. When several acceptable alternatives are deemed appropriate, costs may be considered by the Historic Preservation Board.
Controls on Penfield landmarks and structures within historic districts.
Any owner of a Penfield landmark who desires to repair the exterior of an existing building or structure has the right to repair with the identical materials, finishes, and paint colors as were in place at the time of designation and may do so without a certificate of appropriateness. The Historic Preservation Board shall have no control over interior changes in any building or structure as long as no evidence of such changes appears on the exterior.
Any owners desiring to make alterations to a structure shall design such alterations only in a manner compatible with the exterior style of the structure, the design, scale, detail, trim, manner and materials of construction.
Any owners who desire to demolish a structure shall obtain a certificate of appropriateness from the Historic Preservation Board. After granting of such a certificate, a period of 120 days must elapse before a demolition permit can be issued. During this period, the Historic Preservation Board may require an appraisal to determine the fair market value of the property proposed to be demolished if in its view such appraisal is necessary to grant or deny a certificate of appropriateness. In addition, anyone who desires to save the structure by suitable means may also have this time to determine a fair price by appraisal and to locate a purchaser who will agree not to raze the structure.
New structures in Historic Preservation Overlay Districts and on landmark sites shall harmonize with the general character of the structures in the district or with the landmark. However, new structures shall not be required to comply with any particular style or architectural period unless required by an approved Town plan.
Hardship criteria and procedures for relief.
An applicant whose application for a certificate of appropriateness has been denied may apply to the Historic Preservation Board for relief on the ground of hardship. In order to prove the existence of hardship, the applicant shall establish that:
The property is incapable of earning a reasonable economic return, regardless of whether that return represents the most profitable return possible.
The property cannot be adapted for any other use, whether by the current owner or by a purchaser, which would result in a reasonable economic return.
Diligent, good-faith efforts to find a purchaser interested in acquiring the property and preserving it have failed.
In the case of religious/not-for-profit organizations, the preservation of a structure interferes with the owners' religious or charitable purposes.
The Historic Preservation Board shall hold a public hearing on the hardship application. The applicant shall consult in good faith with the Historic Preservation Board, local preservation groups and interested parties in a diligent effort to seek an alternative that will result in preservation of the property. All hardship decisions of the Board shall be issued in writing.
Permits allowing commercial uses.
The Town Board may, in any district of the Town, grant a permit allowing a commercial use or uses in a Penfield landmark, provided that:
The Historic Preservation Board has made a recommendation to the Town Board.
The Town Board shall be responsible for site plan review in conjunction with any proposed site improvements that are necessary to support the specially permitted use(s).
In granting the permit and site plan approval, the Town Board may impose reasonable conditions.
The Town Board shall record the permit in the miscellaneous records of the County Clerk's office, and the applicant shall pay the appropriate recording fee.
A permit granted pursuant to this section shall be issued by the Town Clerk upon payment of a fee as required by resolution by the Town Board.
Cessation or termination of the use for a period of one year or more shall render the permit null and void.
Administration.
Boundaries of all Historic Preservation Overlay Districts, and the location of Penfield landmarks shall be noted on an overlay to the Official Zoning Map.
An inventory of Penfield landmarks and overlay districts shall be maintained by the Town Clerk.
Any person aggrieved by a determination of the Historic Preservation Board in designating a property as a Penfield landmark or in denying an application for a certificate of appropriateness, including those based on hardship, may take an appeal therefrom to the Zoning Board of Appeals.
All work performed pursuant to a certificate of appropriateness shall conform to any requirements included therein in addition to all other requirements of the law. The Building Code Enforcement Officer shall inspect such work to assure compliance. If work does not conform to the certificate of appropriateness, and all other requirements of the law, the Building Code Enforcement Officer shall issue a stop-work order and all work shall immediately cease.
Failure to comply with any of the provisions of this section shall be deemed a violation. The penalties for such violation are set forth in § 250-15.9 of this chapter.
Nothing in this chapter shall be construed to prevent the ordinary maintenance and repair of any exterior architectural feature of a landmark or property within an Historic Preservation Overlay District which does not involve a change in design, material or outward appearance.
No owner or person with an interest in real property designated as a landmark or included within an Historic Preservation Overlay District shall permit the property to fall into a serious state of disrepair so as to result in the deterioration of any exterior architectural feature which would produce a detrimental effect upon the character of the designated landmark or the Historic Preservation Overlay District as a whole or the life and character of the property itself. Examples of such deterioration include:
Deterioration of exterior walls or other vertical supports.
Deterioration of roofs or other horizontal members.
Deterioration of exterior chimneys.
Deterioration or crumbling of exterior stucco or mortar.
Ineffective waterproofing of exterior walls, roofs or foundations, including broken windows or doors.
Deterioration of any feature so as to create a hazardous condition, which could lead to the claim that demolition is necessary for the public safety.
Any person who demolishes, alters, constructs or permits a designated property or a property proposed for designation to fall into a serious state of disrepair in violation of this section shall be required to restore the property and its site to its appearance prior to the violation. Any action to enforce this subsection shall be brought by the Town Attorney upon authorization by the Town Board. This civil remedy shall be in addition to and not in lieu of any criminal prosecution and penalty. Pursuant to § 250-7.11, Exterior property maintenance, of this chapter and Chapter 97, Unsafe Buildings, of the Penfield Town Code, the Town is authorized to repair properties that have been allowed to fall into a state of disrepair and recover the cost of said repairs from the property owner(s).
§ 250-6.3 Routes 441/250 Overlay District (TFOD).
Purpose. The purpose of the Routes 441/250 Overlay District (TFOD) is to recognize the unique nature of this area of the Town, which is the only area in the Town located at the intersection of two heavily traveled New York State arterials. It is impacted by rapid growth in adjacent communities both to the south and east of this area. This area is not currently served by any interstate highway, as are other commercial zoning districts in the Town. The primary intent in creating the 441/250 Overlay District is to preserve the character of those residential properties surrounding commercial uses; enhance accessibility and convenience to commercial uses; lessen traffic congestion; and promote greater pedestrian and vehicular safety in the area. These objectives will be accomplished through coordinated access management and ensuring that commercial development remains localized in nature and is scaled to primarily service and support the needs of the residential areas surrounding it. This overlay district is further designed to safely manage those existing commercial developments, as well as the significant number of undeveloped commercial properties, through improved traffic flow and more efficient use of available lands with shared access and parking areas, compatible with and not detrimental to surrounding residential properties.
Overlay regulations.
The TF Overlay District shall be overlaid upon the 441/250 area as delineated on the Town of Penfield Official Zoning Map.
The TF Overlay District regulations are superimposed upon the primary underlying zoning districts and provide additional regulations and design standards to achieve the development purposes of this area of the Town. All provisions of this chapter applicable to the underlying zoning district shall remain effective in the overlay district, except as hereinafter provided. In the case of conflict between regulations contained in the underlying zoning district and the regulations contained in this overlay district, the provisions of the district that provides the greater safety protection for pedestrian or vehicular traffic shall govern. Also, in case of conflict between setback and buffer requirements, the regulation containing the larger setback or buffer area shall govern.
The overlay regulations shall employ additional standards designed to:
Encourage compatibility between residential, retail, business, service and public uses.
Provide for protective buffers and landscaping to preserve and promote the residential character and visual aesthetics of the surrounding area when business and/or service uses are proposed.
Encourage shared access to enhance traffic flow and promote pedestrian and vehicular safety.
Encourage shared use of and internal parking linkages between off-street parking areas.
Minimize alternative access points to off-street parking areas from Penfield Road and Fairport Nine Mile Point Road in a convenient, safe and nonintrusive manner.
Areas zoned Business Non-Retail District (BN-R). (See also § 250-5.5, Business Non-Retail District.)
Permitted uses. Notwithstanding any language contained in this chapter to the contrary, only the following uses are permitted in the BN-R District:
Offices/Office parks.
Medical and dental offices and clinics, excluding overnight occupancy.
Banks with related services.
Photographic and art studios.
Uses accessory to the above, which are an integral part of and used solely by the permitted use and are deemed appropriate by the authorized official.
Conditional uses. Notwithstanding any language contained in this chapter to the contrary, only the following uses and their accessory uses shall be permitted when authorized in accordance with Article XIII, Conditional Use Permits:
Areas zoned Limited Business District (LB). (See also § 250-5.6, Limited Business District.)
Permitted uses. Notwithstanding any language contained in this chapter to the contrary, only the following uses are permitted in the LB District:
Permitted uses and appropriate accessory uses set forth in Subsection C(1) above related to Business Non-Retail District areas within the Routes 441/250 Overlay District.
Convenience marts without gasoline service.
Laundromat or dry-cleaning pick-up establishments.
Retail bakeries and pastry shops (excluding wholesale).
Drugstores or pharmacies.
Barber and beauty shops.
Flower shops.
Liquor stores.
Retail stores, excluding department stores.
Grocery stores.
Hardware stores, garden supply stores and wallpaper stores.
Uses accessory to the above which are an integral part of and used solely by the permitted uses and which are deemed appropriate by the authorized official.
Conditional uses. Notwithstanding any language contained in this chapter to the contrary, only the following uses and their accessory uses shall be permitted when authorized in accordance with Article XIII, Conditional Use Permits:
Areas zoned General Business District (GB). (See also § 250-5.7, General Business District.)
Permitted uses. Notwithstanding any language contained in this chapter to the contrary, only the following uses are permitted in the areas zoned GB District within the Routes 441/250 Overlay District:
Permitted uses and appropriate accessory uses set forth in Subsection C(1) above relating to Business Non-Retail District areas within the Routes 441/250 Overlay District.
Permitted uses and appropriate accessory uses set forth in Subsection D(1) above relating to Limited Business District areas within the Routes 441/250 Overlay District.
Retail outlets and department stores.
Senior citizen housing.
Proprietary health care facilities/nursing homes.
Uses accessory to the above, which are an integral part of and used solely by the permitted use and deemed appropriate by the authorized official.
Conditional uses. Notwithstanding any language contained in this chapter to the contrary, the following uses and their accessory uses shall be permitted when authorized in accordance with Article XIII, Conditional Use Permits:
Bars, taverns, restaurants or other eating-places.
Theaters (not exceeding 12 screens).
Auto repair shops.
Commercial recreational facilities.
Convenience marts with gasoline service.
Vehicle washes.
Gasoline service stations.
Special dimensional requirements.
Freestanding accessory commercial structures, proposed to be constructed in conjunction with principal commercial uses, such as plazas, shall be set back not less than 50 feet from the state right-of-way. All portions of said setback shall be devoted to landscaped area, and all parking facilities shall be located in a manner which optimizes green space along the state right-of-way and shall be incorporated into the parking facilities serving the principal use.
In cases where shared access has been identified and implemented through municipal approvals, said properties shall be subject to a maximum 70% developable area and minimum 30% open space or green space requirement. In all other cases, properties shall be subject to a maximum 65% developable area requirement and a minimum 35% green space requirement.
Any structure fronting on any internal access road shall be set back not less than 20 feet from such right-of-way or 35 feet from the center line of the road, whichever is greater.
All parking facilities associated with structures fronting on internal access roads shall be located in areas most remote from residential properties, where practicable.
Design regulations. The Town has identified the necessity of sharing access and off-street parking areas in this overlay district, including controlled linkages between existing and proposed off-street parking areas, as priority objectives. The joint use or sharing of ancillary site features, including, but not limited to, off-street parking, loading, access, lighting, landscaping and signage, is desired within the TF Overlay District.
Written agreement. The board having jurisdiction shall evaluate the potential for joint or shared use of such facilities in all development actions within the TFOD. If the board determines that such joint or shared use is warranted, a written agreement, including amendments or modifications, granting or providing such shared or joint use of facilities or access by two or more entities shall be approved by the board having jurisdiction as a condition of subdivision and/or site plan approval, change of use or conditional use permit approval.