Penfield City Zoning Code
ARTICLE VI
Overlay Districts
§ 250-6.1 Environmental Protection Overlay Districts (EPOD).
A.
Purpose. Notwithstanding any provision of this chapter to the contrary, under no circumstances shall an Environmental Protection Overlay District (EPOD) development permit be issued for any explicitly prohibited use.
(1)
The purpose of the Environmental Protection Overlay Districts established in this article is to provide special controls over land development located in sensitive environmental areas within the Town of Penfield. These 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, floodplains, watercourses and woodlands.
(2)
The regulations contained in each EPOD are not intended to be substituted for other general zoning district provisions, but can be superimposed over such district provisions, and should be considered as additional requirements to be met by the applicant or developer, prior to project approval. The purpose of the overlay districts is to provide the Town with an additional level of review and regulation that controls how land development permitted by the Town's primary zoning districts should occur in sensitive or unique environmental areas.
B.
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 Environmental Protection Overlay Districts:
EPOD (1) | Wetland Protection Overlay District | |
EPOD (2) | Steep Slope Protection Overlay District | |
EPOD (3) | Woodland Protection Overlay District | |
EPOD (4) | Floodplain Protection Overlay District | |
EPOD (5) | Watercourse Protection Overlay District |
C.
Official maps. The approximate locations and boundaries of all Environmental Protection Overlay Districts shall be delineated on an official set of maps on file in the Town Clerk's office. These maps shall be known and may be cited as the "Official Town of Penfield EPOD Maps" and shall include the Environmental Atlas Maps for the Town, the Official Wetland Maps for the Town, [prepared by the New York State Department of Environmental Conservation (NYSDEC) and the Army Corps of Engineers (ACOE)], and the official Flood Insurance Rate Maps (FIRM) for the Town, prepared by the Federal Emergency Management Agency (FEMA). The Official 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 in order to determine whether or not a particular piece of property is included within one or more of the overlay districts.
D.
Interpretation of district boundaries.
(1)
The authorized official shall be responsible for interpreting Environmental Protection Overlay District boundaries based on an interpretation of the Official Town of Penfield EPOD Maps determining such district boundaries. The authorized official may request the assistance of the Town Engineer/County Engineer or other appropriate department or agency in making such a determination.
(2)
Where environmental protection districts overlay any primary zoning district delineated on the Official Zoning Map of the Town of Penfield, the requirements of the overlay district shall be met in addition to any requirements specified for development in the respective primary zoning district.
E.
Permit application procedures.
(1)
EPOD development permit:
(a)
An EPOD development permit shall be required prior to 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.
(b)
The following activities are exempt from the permit procedures of the article, subject to a determination by the authorized official that such activities involve necessary normal maintenance and upkeep of property, and/or are clearly incidental to the primary use on the property, and/or involve public health, safety or emergency situations:
[1]
Lawn care and maintenance.
[2]
Gardening activities.
[3]
Tree and shrub care and maintenance.
[4]
Removal of dead or deteriorating vegetation.
[5]
Removal of structures.
[6]
Select cutting and removal of trees in woodlands, that is not located within a steep slope district, for personal use of property owner. Sale of said wood is prohibited.
[7]
Repair and maintenance of structures.
[8]
Repair and maintenance of faulty or deteriorating sewage facilities or utility lines.
[9]
Reconstruction of structures damaged by a natural disaster.
[10]
Customary agricultural activities, except structural activities.
[11]
Public health activities, orders and regulations of the New York State Department of Health, Monroe County Department of Health, or other agency, undertaken in compliance with the New York State Environmental Conservation Law.
[12]
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.
[13]
Any actual or ongoing emergency activity which is immediately necessary for the protection and preservation of life, property or natural resource values.
(2)
Application for permit.
(a)
Applications for EPOD development permits shall be made in writing to the appropriate board or authorized official having jurisdiction in the matter, on forms available in the Town Planning Department. 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 Planning Board or Town Board or authorized official, including but not limited to a scaled (one inches equals 50 feet or one inch equals 100 feet) site plan prepared and certified by a licensed engineer or land surveyor, which contains the following minimum information:
[1]
A location plan and boundary line survey of the property.
[2]
The location of all Environmental Protection Overlay District boundaries, designated Town open space, Town, county or state parkland.
[3]
The location of all existing and proposed buildings, structures, utility lines, sewers, water and storm drains on the property or within 200 feet of the proposed work site.
[4]
The location of all existing and proposed impervious surfaces such as driveways, sidewalks, etc., on the property or within 200 feet of the proposed work site.
[5]
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.
[6]
The location and types of all existing and proposed vegetation and shrub masses, as well as all trees with a diameter of six inches or more within and/or adjacent to the property.
[7]
The location of all existing and proposed drainage patterns, drainageways, swales, etc., within and/or adjacent to the property.
(b)
Each application for an EPOD development permit shall be accompanied by the appropriate fee(s) as determined by the Town Board. The fee(s) shall be in addition to any other fees required for the development under this chapter and/or the Town Code.
(3)
Permit review.
(a)
For projects requiring site plan approval under Article XII of this chapter, the authorized official shall refer a completed permit application to the Town Planning Board or Town Board, as the case may be, for a public hearing in accordance with Article XII. The authorized official may refer all applications to the appropriate boards and agencies for their review and recommendations. Such boards or agencies shall have 30 days from the date of their receipt of a completed application in which to review such application and report their recommendations to the appropriate board or authorized official. Should such boards and agencies fail to report or make a recommendation to the authorized official or the appropriate board regarding applications within the thirty-day time period, or request an extension, the authorized official or the appropriate board may take action on the permit application without such report.
(b)
The authorized official or the Town Planning Board or Town Board, as the case may be, 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 appropriate board may also request a report from the Town Engineer in acting on such permit applications.
(c)
Any development permit issued by the authorized official or the Town Planning Board or Town Board, as the case may be, 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:
[1]
The authorized official, Town Engineer/consulting engineer and/or other appropriate Town official shall have the right to inspect the project from time to time.
[2]
The permit shall expire on a particular date. The board having jurisdiction will make the determination of the date of expiration.
[3]
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.
(4)
Requirement for letter of credit/certified check.
(a)
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.
(b)
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.
(5)
Suspension or revocation of permits. The authorized official may suspend a permit (temporarily) until such time as the board having jurisdiction reviews the suspension. The Town Board may, upon recommendation of the authorized official, and after having provided the permittee five days' written notice, suspend or revoke a development permit issued in accordance with the provisions of this section where it has found evidence that the applicant has not complied with any/all terms or conditions of such permit, has exceeded the authority granted in the permit, or has failed to undertake the project in the manner set forth in writing with its findings and reasons for revoking or suspending a permit issued pursuant to the section. The authorized official shall forward a copy of said findings to the applicant. Permitted work shall immediately cease upon suspension of a permit.
F.
EPOD (1): Wetland Protection Overlay District.
(1)
Purpose. The purpose of the Wetland Protection Overlay District regulations is to preserve, conserve and protect freshwater wetlands located within the Town of Penfield, pursuant to the New York State Environmental Conservation Law, or federal wetlands designated by the Army Corps of Engineers (ACOE), as well as any local laws regulating wetlands. Through this statement of purpose, it is declared to be the public policy of the Town of Penfield that these areas be protected as invaluable natural resources that provide for flood protection, wildlife habitats, recreational and open space, erosion and pollution control, and protection and recharging of groundwater supplies. The regulations contained in this district seek to prevent the despoliation and destruction of freshwater wetlands by controlling development in these areas, and by requiring review and permit approval prior to project commencement.
(2)
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 all wetland areas designated as Type I, Type II, Type III and Type IV by the New York State Department of Environmental Conservation (NYSDEC) and ACOE, as well as any locally regulated wetlands. The provisions of this subsection shall be applicable to all wetland areas within the Town of Penfield shown on the official Town maps. Upon application for a development permit within a Wetland Overlay Protection District, the authorized official shall refer such application and site plan to the State Department of Environmental Conservation (NYSDEC) in order to determine the precise boundary of the wetland area. The boundary of a Wetland Protection Overlay District shall include a buffer zone that extends out from the edge of the wetland area for a distance of 100 feet, or 300 feet, as determined by the NYSDEC, or local determination of wetland buffer not under NYSDEC and/or U.S. Army Corps of Engineers jurisdiction.
(3)
Regulated activities. No regulations contained within this article are intended to supersede the provisions of Title 6, Part 665, of the New York State Codes, Rules and Regulations (NYCRR), Local Government Implementation of the Freshwater Wetlands Act and Statewide Minimum Land Use Regulations for Freshwater Wetlands, but are intended to supplement said provisions as an additional level of local review. No person shall conduct any of the following regulated activities within any Wetland Protection Overlay District in the Town of Penfield unless such person has first applied for and obtained an EPOD development permit pursuant to the requirements of this section:
(a)
Any form of draining, dredging, excavation or removal of any natural or previously deposited materials directly or indirectly from a wetland.
(b)
Any form of dumping, filling or depositing any material either directly or indirectly within a wetland.
(c)
The erection or placement of any structures, roads or any man-made materials within the wetland.
(d)
Any form of pollution, including but not limited to installing a septic tank, running a sewer outfall, discharging sewage treatment effluent or other liquid wastes into a wetland.
(e)
Any activity which impairs the natural function of wetlands, whether the impairing activity is located within the wetland or not.
(f)
Any activity regulated by Environmental Conservation Law § 24-0701.
(4)
Development standards and permit conditions. In granting, denying or conditioning any application for an EPOD development permit, the authorized official or the appropriate board shall consider the effect that the proposed regulated activity will have on the public health, safety and welfare, and the protection or enhancement of the several functions and benefits of freshwater wetland areas as stated in Subsection F(1) of this section. Furthermore, no permit shall be granted for a regulated activity within a Wetland Protection Overlay District unless the applicant can adequately demonstrate that the activity will in no way at present or at any time in the future:
G.
EPOD (2): Steep Slope Protection Overlay District.
(1)
Purpose. The purpose of the Steep Slope Protection Overlay District is to minimize the impacts of development activities on steep slopes in the Town of Penfield by regulating activities in these areas, and by requiring review and permit approval prior to project commencement. The development impacts include soil erosion and sedimentation, destruction of vegetation, increased runoff rates and slope failure. The regulations contained in this district 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.
(2)
Delineation of district boundaries. The boundaries of the Steep Slope Protection Overlay District shall be delineated on the Official Town of Penfield EPOD Maps and shall include all areas in the Town of Penfield within 50 feet of the top and toe of a fifteen-percent slope or greater. The authorized official and Town Engineer/consulting engineer may consult other information including, but not limited to, soil survey reports prepared by the Natural Resources Conservation Service, topographic maps produced by the United States Geological Survey, field surveys and other appropriate sources in order to more accurately locate and delineate Steep Slope Protection Overlay District boundaries within the Town.
(3)
Regulated activities. No person shall conduct any of the following regulated activities within any Steep Slope Protection Overlay District in the Town of Penfield, unless such person has first applied for and obtained an EPOD development permit pursuant to the requirements of this section:
(a)
Clearing of or construction on any land area within the district, including construction or clearing activities related to providing equipment access on the site, except for those activities exempted from the permit requirements of this section as indicated in Subsection E of this section.
(b)
The construction or placement of any sewage disposal system, including individual sewage disposal systems, septic tanks, septic drainage or leach fields.
(c)
Filling, cutting, or excavating operations.
(d)
Discharge of stormwater and/or construction and placement of stormwater runoff systems.
(4)
Development standards permit conditions.
(a)
In granting, denying or conditioning any application for an EPOD development permit, the authorized official or the Town Planning Board or Town Board, as the case may be, shall consider the effect that the proposed regulated activity will have on the public health, safety and welfare and the protection or enhancement of the fragile and environmentally sensitive steep slope areas within the Town.
(b)
No permit to undertake a regulated activity within a Steep Slope Protection Overlay District in the Town of Penfield shall be issued by the authorized official or the appropriate board unless the applicant can adequately demonstrate that:
[1]
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 must be submitted and shall be determined by a professional soil scientist or engineer using the soil classes and nomenclature contained in the Monroe County soil surveys, and obtained for the site by borings as well as high-intensity soil survey data provided by the applicant.
[2]
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-bearing data provided by a qualified testing laboratory or engineer and paid for by the developer (or applicant).
[3]
No proposed activity will cause erosion or slipping of soil, or cause sediment to be discharged into Irondequoit Bay, its wetlands or tributaries, or any stream or tributary.
[4]
Plant life located on the slopes outside of the minimum area that needs to be disturbed for carrying on approved activities shall not be destroyed. 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.
[5]
Access down steep slopes shall be provided with ramp slopes no greater than 1:16 and side slopes no greater than 1:3 if not terraced or otherwise structurally stabilized. Disturbed non-roadway areas shall be stabilized and adequately drained.
[6]
Construction of erosion protection structures, particularly along the water side of eroding bluffs, shall provide protection of bluff features according to the following standards:
[a]
All erosion protection structures shall be designed and constructed according to generally accepted engineering principles found in publications of the U.S. Natural Resources Conservation Service, as amended.
[b]
The construction, modification or restoration of erosion protection structures shall not be likely to cause any measurable increase in erosion at the development site or other locations, and prevent adverse effects to natural protective features, existing erosion protection structures, and natural resources such as significant fish and wildlife habitats.
[7]
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.
[8]
Any grading, excavating or other soil disturbance conducted on a steep slope shall not direct surface water runoff over the receding edge during construction.
[9]
There is no reasonable alternative for the proposed regulated activity on that portion of the site not containing steep slopes.
(c)
The applicant for a permit shall have the burden of demonstrating that the proposed regulated activity will be conducted in accordance with the standards and requirements set forth above, which may be imposed by the authorized official or board having jurisdiction.
H.
EPOD (3): Woodland Protection Overlay District.
(1)
Purpose. The purpose of the Woodland Protection Overlay District and Tree Preservation Zone Regulations is to preserve and protect woodland and measurable stands of trees within the Town of Penfield by regulating or controlling development in those areas, and by requiring review and conditional permit approval prior to project commencement.
(2)
Delineation of district boundaries. The boundaries of the Woodland Protection Overlay District 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 woodland. Areas that involve active orchards shall not be included in the Woodland Protection Overlay District. Wooded areas smaller than five contiguous acres may be included in the Woodland Protection Overlay District if said areas are recommended by the Penfield Conservation Board, are officially adopted and appear on the Official EPOD Map.
(3)
Regulated activities. No person shall conduct any of the following regulated activities within any Woodland Protection Overlay District or Tree Preservation Zone in the Town of Penfield unless such person has first applied for and obtained an EPOD development permit pursuant to the requirements of this section:
(4)
Development standards and permit conditions.
(a)
In granting, denying or conditioning any application for an EPOD development permit, the authorized official or the Town Planning Board or Town Board, as the case may be, shall consider the effect that the proposed regulated activity will have on the public safety and welfare, and the protection and enhancement of the woodland and Tree Preservation Zone.
(b)
Any application for a permit to undertake a regulated activity within a Woodland Protection Overlay District or Tree Preservation Zone 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 in no way at present, or at any time in the future, adversely affect the following:
[1]
Soil stability.
[2]
Velocity or rate of surface water runoff.
[3]
Existing drainage systems.
[4]
Natural characteristics of a watercourse.
[5]
Significant wildlife habitats, including wildlife corridors.
[6]
Steep slope areas.
[7]
Recreational opportunities, including hiking trails.
[8]
Noise levels and visual impacts on adjacent areas.
[9]
Water quality.
(5)
Specific standards for EPOD permit application.
(a)
Site development or grading.
[1]
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.
[2]
The Environmental Protection Overlay District review process shall include the following:
[a]
The applicant shall provide a 1:50 scale tree preservation plan which shows the following:
[i]
Woodland Protection Overlay District and Tree Preservation Zone boundaries as determined on the project site. The authorized official or Planning Board may require a specific tree inventory on all or part of a proposed project site.
[ii]
Limits of proposed clearing for rights-of-way, utility easements, building sites, access roads and drainage areas.
[iii]
Proposed grade changes in or around treed areas.
[iv]
Method of providing positive drainage in any proposed tree wells or areas where drainage patterns will be modified.
[b]
The applicant shall then schedule a site walk with the Conservation Board, the Planning Board and/or the Town's landscape consultant, along with the applicant's site engineer for the purpose of determining areas where tree preservation methods are to be intensified or where stands of trees will be left untouched.
[c]
Once this has been done, the applicant's site engineer shall then calculate to the satisfaction of the Conservation Board and Planning Board or Town Board, as the case may be, that no more than 10% of the original Woodland Protection Overlay District or Tree Preservation Zone that exists on the property will be disturbed. Grade changes of +/- 12 inches will constitute disturbance.
[d]
If the applicant's site engineer finds it impossible to retain at least 90% of the original Woodland Protection Overlay District or Tree Preservation Zone that exists on the property, the applicant shall adequately demonstrate mitigation of the same through reforesting as follows: All woodland areas in excess of the 10% allowed above will be subject to a reforesting effort, preferably on the subject property. This effort shall include an inventory of trees to be removed, including species and diameter at breast height (dbh). Street tree requirements shall not be considered in the mitigation of woodland EPOD disturbance. All trees in excess of eight inches' dbh shall be replaced as follows:
[i]
Eight inches to 18 inches dbh: planting of two trees (minimum two-inch caliper) per every tree removed in excess of 10% of the woodland EPOD on the property.
[ii]
Eighteen inches and over: planting of three trees (minimum two-inch caliper) per every tree removed in excess of 10% of the woodland EPOD on the property.
[e]
Following approval and prior to commencement of earth-moving operations, the developer and site contractor shall demonstrate compliance with the approved limits of disturbance by delineation with snow fencing or similar enclosure or other acceptable means of delineation of these boundaries. Limits of disturbance shall embrace all tree canopy areas and extended root systems to be protected.
[f]
Once all earth-moving, utility and road construction has been done, the developer shall have the scheduled trees installed in locations acceptable to both the authorized official and developer.
(b)
Tree harvesting.
[1]
Any activity within a Woodland Protection Overlay District or Tree Preservation Zone involving the thinning of trees or harvesting of timber for commercial use shall be subject to an EPOD permit. Applications for this type of activity shall be submitted by the applicant to the New York State Department of Environmental Conservation and Monroe County Soil and Water Conservation Service for review and advisory opinions.
[2]
Applicants for such activity must submit a management plan prepared by a qualified consulting forester or a forest management recommendation prepared by a NYSDEC forester, which includes the following information:
[a]
A site plan showing limits of the proposed work and existing size of the woodland.
[b]
The species and sizes of trees present and the basal area of the site before and after the proposed management activity.
[c]
The system of harvesting and access roads.
[d]
Definite time frame for the activity.
[e]
Proposed erosion and sedimentation control measures, including revegetation and timing, designed in accordance with Woodlots of the Northeast, Erosion and Sediment Control Guidelines, prepared by the U.S. Department of Agriculture, 1977.
[f]
The posting of a letter of credit or certified check sufficient to pay for completion of remedial measures upon failure of the applicant to meet the specifications of the plan, in an amount necessary to complete the anticipated work.
[g]
The recording of timber sale contracts with the Town Clerk of the Town of Penfield.
[3]
The following specific practices shall be used to minimize soil erosion and sedimentation during tree harvesting activities:
[a]
Stream/Swale crossings shall be kept to a minimum.
[b]
Stream banks shall be protected by controlling skidding and felling close to the stream.
[c]
All roads and skid trails shall be reviewed for appropriate location, design and construction.
[d]
Landing locations that avoid erosion problems and minimize impact to understory shall be selected.
[e]
Applications for woodland management shall comply with all applicable New York State and local fire laws.
[f]
Whenever possible, landings shall be kept out of sight. Landings and access roads shall be restored after use.
(c)
Tree preservation. Tree caliper shall be measured six inches above the ground on trees up to and including four inches in caliper (diameter) and 12 inches above the ground in larger trees. At the time of sketch plan review with the Planning Board, Town Board or authorized official, the Conservation Board may enter the property for the purposes of reviewing the size, species and desirability of trees that exist on the property. The Conservation Board may recommend, prior to preliminary application, the preservation of any or all of the Woodland EPOD, identification of specific specimens important to the site and, if disturbance is still proposed, specific mitigation to replace trees to be removed. Following receipt of the Conservation Board recommendations, the Planning Board, Town Board or authorized official may incorporate one or more of the following:
[1]
The subdivider is required to permanently tag or affix identification on or provide a mapped inventory of each tree on the site having a caliper of eight inches or more prior to the submission of an application for preliminary subdivision or site plan approval.
[2]
The subdivider or developer shall lay out the subdivision in such a manner as to minimize the number of trees eight inches or more in caliper to be removed to accommodate development.
[3]
The subdivider or developer may be required to preserve trees having a caliper of less than eight inches if the Planning Board or Town Board, as the case may be, finds that such trees have significant aesthetic value due to species or location or that their removal would excessively alter drainage, visual impacts or affect the stability of slopes.
[4]
The subdivider or developer shall install protective barriers around each tree or group of trees and adjacent understory not specifically authorized for removal prior to the start of any construction or may, with the approval of the Board, 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. Tree preservation measures should be covered in an appropriate section of a letter of credit.
[5]
Trees which have been designated for preservation, including supplemental trees, shall be deemed to be required site improvements, and their preservation and replacement, as necessary, including the replacement of trees damaged during construction, shall remain the responsibility of the subdivider or developer for a period of one year after the completion of the development. That portion of the performance bond calculated to be the cost of replacing trees to be preserved or supplemental trees which may be damaged during construction shall be retained by the Town for at least one year after all improvements in the subdivision have been completed. Prior to release of the bond, the trees shall be inspected to ensure that they have not been damaged, and that future growth will be characteristic of the species.
[6]
The requirements for tree preservation shall not apply to lots for existing houses in a new subdivision, provided that such lots and houses will not be altered to accommodate development of the subdivision. However, this provision shall not relieve the subdivider or developer of the responsibility of including in the tree preservation plan for the subdivision any tree eight inches or more in caliper located within 50 feet of a new lot or required subdivision or development improvement. When lots for existing houses have been excluded from the tree preservation plan, the landscape architect shall set forth on the plan which lots have been excluded, and shall certify that the plan does include all trees eight inches or more in caliper located within 50 feet of a new lot or other subdivision improvement, and that surrounding development will not substantially alter the environment of the trees on such lot.
[7]
In cases where the number of trees required to satisfy the penalty cannot be accommodated on the site of the violation, the penalty shall include planting of trees on available public spaces and/or payment of $800 per tree to the Town Tree Fund.
I.
EPOD (4): Floodplain Protection Overlay District.
(1)
Purpose.
(a)
It is hereby found and declared that the unmanaged use of property, the alteration of topography, and excessive filling, channel encroachment or other acts affect the natural discharge of water through floodplains and constitute a threat to the health, safety and general welfare of the inhabitants of the Town of Penfield and to the economic vitality of the community. The purpose of this subsection is to regulate development within the areas of the Town which are subject to flooding in order to protect the health, safety and welfare of the inhabitants of the Town of Penfield from hazards due to periodic flooding; to prevent loss of property and potential loss of life in the flood-prone areas; to preserve the water quality; to minimize expenditures for relief, insurance and flood control projects; and to limit building and development within the areas of special flood hazard. The FIRM maps provided by FEMA dated August 28, 2008, shall be considered the basis for determining the Town of Penfield Floodplain Protection Overlay District. Refer to Chapter 120, Flood Damage Prevention, of the Town Code for regulations.
(b)
The boundaries of the Floodplain Protection Overlay District shall be delineated on the Official Town of Penfield EPOD Maps, with latest revisions, and shall include all areas of special flood hazard as defined by Chapter 120, § 120-4, of the Code of Penfield and as further identified by the Federal Insurance Administration in a report entitled "Flood Insurance Study, Monroe County, New York" dated August 28, 2008, with accompanying Flood Insurance Rate Map and Flood Hazard Boundary Map. Such maps, and amendments and revisions thereto, are incorporated by reference herewith and declared to be a part of this subsection.
J.
EPOD (5): Watercourse Protection Overlay District.
(1)
Purpose. The purpose of the Watercourse Protection Overlay District regulations is to preserve and protect watercourses 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.
(2)
Delineation of district boundaries. The boundaries of the Watercourse Protection Overlay District shall be delineated on the Official Town of Penfield EPOD Maps and shall include all areas in the Town of Penfield as follows: ALL those areas within 75 feet of the center line of a natural or man-made watercourse.
(3)
Regulated activities. No person shall conduct any of the following regulated activities within any Watercourse Protection Overlay District in the Town of Penfield unless such person has first applied for and obtained an EPOD development permit pursuant to the requirements of this section:
(a)
Clearing or filling, dredging, excavating, depositing of natural or man-made materials or constructing on any land area which lies within the Watercourse Protection Overlay District boundaries, except that the following activities shall be exempt from the clearing regulations of this subsection:
(b)
The construction or placement of any septic tank or septic drainage field.
(c)
Any activity which would alter the natural flow pattern of the watercourse.
(4)
Development standards and permit conditions.
(a)
In granting, denying or conditioning any application for an EPOD development permit, the authorized official or the appropriate board shall consider the effect that the proposed regulated activity will have on the public health, safety and welfare and the protection and enhancement of watercourses within the Town.
(b)
Any applicant for a permit to undertake a regulated activity within a Watercourse Protection Overlay District in the Town of Penfield shall be required to adequately demonstrate to the authorized official or the appropriate board that the proposed activity will in no way at present, or at any time in the future, adversely affect the following:
(d)
The applicant for a permit shall have the burden of demonstrating that the proposed regulated activity will be conducted in accordance with the standards and requirements listed above.
§ 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]
A.
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.
B.
Purpose.
(1)
The purpose of these historic preservation regulations is to:
(a)
Preserve the historical and architectural character of certain sites, structures or districts [hereinafter collectively referred to as "property(ies)"] within the Town of Penfield.
(b)
Prevent impairment of or injury to the historical, architectural and cultural value to the community of the property(ies).
(c)
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.
(d)
Foster civic pride in the accomplishments of the past.
(e)
Protect and enhance Penfield's attractiveness to visitors.
(f)
Support and stimulate the economic activities provided by tourism.
(g)
Stabilize and improve property values.
(h)
Ensure the harmonious, orderly, and efficient growth and development of the Town.
(2)
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.
C.
Criteria and procedures for designation of landmarks.
(1)
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.
(2)
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.
D.
Criteria and procedures for designation of Historic Preservation Overlay Districts.
(1)
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.
(2)
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.
(3)
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.
E.
Regulations.
(1)
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.
(2)
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.
(3)
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.
(4)
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.
F.
Criteria for issuance of certificate of appropriateness.
(1)
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:
(a)
Any alteration of existing properties shall be compatible with their historic character, as well as with the surrounding properties.
(b)
Properties which contribute to the character of the Historic Preservation Overlay District shall be retained with their historic features altered as little as possible.
(c)
New construction shall be compatible with other properties in the district in which it is located.
(d)
Consideration shall be given to approved municipal plans affecting the property(ies).
(2)
In applying the principle of compatibility, the Historic Preservation Board shall consider the following factors:
(a)
The general design, character and appropriateness to the property of the proposed alteration or new construction.
(b)
The scale and size of the proposed alteration or new construction in relation to the property itself, surrounding properties, and the neighborhood.
(c)
The texture, materials, and color and their relation to similar features of other properties in the neighborhood.
(d)
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.
(e)
The importance of historic, architectural, or other features to the significance of the property.
(3)
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.
G.
Controls on Penfield landmarks and structures within historic districts.
(1)
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.
(2)
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.
(3)
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.
(4)
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.
H.
Hardship criteria and procedures for relief.
(1)
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:
(a)
The property is incapable of earning a reasonable economic return, regardless of whether that return represents the most profitable return possible.
(b)
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.
(c)
Diligent, good-faith efforts to find a purchaser interested in acquiring the property and preserving it have failed.
(d)
In the case of religious/not-for-profit organizations, the preservation of a structure interferes with the owners' religious or charitable purposes.
(2)
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.
I.
Permits allowing commercial uses.
(1)
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:
(a)
The Historic Preservation Board has made a recommendation to the Town Board.
(c)
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).
(d)
In granting the permit and site plan approval, the Town Board may impose reasonable conditions.
(2)
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.
(3)
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.
(4)
Cessation or termination of the use for a period of one year or more shall render the permit null and void.
J.
Administration.
(1)
Boundaries of all Historic Preservation Overlay Districts, and the location of Penfield landmarks shall be noted on an overlay to the Official Zoning Map.
(2)
An inventory of Penfield landmarks and overlay districts shall be maintained by the Town Clerk.
(3)
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.
(4)
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.
(5)
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.
(6)
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.
(7)
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:
(a)
Deterioration of exterior walls or other vertical supports.
(b)
Deterioration of roofs or other horizontal members.
(c)
Deterioration of exterior chimneys.
(d)
Deterioration or crumbling of exterior stucco or mortar.
(e)
Ineffective waterproofing of exterior walls, roofs or foundations, including broken windows or doors.
(f)
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.
(8)
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).
A.
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.
B.
Overlay regulations.
(1)
The TF Overlay District shall be overlaid upon the 441/250 area as delineated on the Town of Penfield Official Zoning Map.
(2)
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.
(3)
The overlay regulations shall employ additional standards designed to:
(a)
Encourage compatibility between residential, retail, business, service and public uses.
(b)
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.
(c)
Encourage shared access to enhance traffic flow and promote pedestrian and vehicular safety.
(d)
Encourage shared use of and internal parking linkages between off-street parking areas.
(e)
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.
C.
Areas zoned Business Non-Retail District (BN-R). (See also § 250-5.5, Business Non-Retail District.)
(1)
Permitted uses. Notwithstanding any language contained in this chapter to the contrary, only the following uses are permitted in the BN-R District:
(a)
Offices/Office parks.
(b)
Medical and dental offices and clinics, excluding overnight occupancy.
(c)
Banks with related services.
(d)
Photographic and art studios.
(e)
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.
D.
Areas zoned Limited Business District (LB). (See also § 250-5.6, Limited Business District.)
(1)
Permitted uses. Notwithstanding any language contained in this chapter to the contrary, only the following uses are permitted in the LB District:
(a)
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.
(b)
Convenience marts without gasoline service.
(c)
Laundromat or dry-cleaning pick-up establishments.
(d)
Retail bakeries and pastry shops (excluding wholesale).
(e)
Drugstores or pharmacies.
(f)
Barber and beauty shops.
(g)
Flower shops.
(h)
Liquor stores.
(i)
Retail stores, excluding department stores.
(j)
Grocery stores.
(k)
Hardware stores, garden supply stores and wallpaper stores.
(l)
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.
E.
Areas zoned General Business District (GB). (See also § 250-5.7, General Business District.)
(1)
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:
(a)
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.
(b)
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.
(c)
Retail outlets and department stores.
(d)
Senior citizen housing.
(e)
Proprietary health care facilities/nursing homes.
(f)
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.
(2)
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:
F.
Special dimensional requirements.
(1)
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.
(2)
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.
(3)
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.
(4)
All parking facilities associated with structures fronting on internal access roads shall be located in areas most remote from residential properties, where practicable.
G.
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.
(1)
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.