LOCAL LAW 6, 2021, AMENDING TOWN CODE, PERFORMANCE STANDARDS

LOCAL LAW TO AMEND
chapters 6, 14, 24 and 43 the code of the TOWN OF ORANGETOWN

 

A LOCAL LAW to amend Chapters 6, 14, 24 and 43 of the Code of the Town of Orangetown concerning fees and performance standards.

BE IT ENACTED by the Town Board of the Town of Orangetown as follows:

 Section 1. Chapter 43, Section 10.222, Subsection E of the Code of the Town of Orangetown entitled “Permits granted only in conformance with regulations” is hereby repealed.

Section 2. Chapter 43, Section 10.223, Subsection (g) of the Code of the Town of Orangetown is hereby amended as follows:

[d]      Whether the topography of the area in which the trees are located is such

that the removal of such trees will result in damage to the environment through erosion.

 

[7]        Applications shall be made by the owner or lessee, or by agent of either, or by the architect, engineer or builder employed in connection with the proposed work. Where such application is made by a person other than the owner, it shall be accompanied by an affidavit of the owner or applicant that the proposed work is authorized by the owner and that the applicant is authorized to make such application.

Each application for a permit shall be accompanied by the required permit fees and copies of plan documents three copies of plans and specifications, and four copies of the plot plan, drawn to scale on durable paper, showing the location and size of all proposed new construction and all existing structures on the site, the nature and character of the work to be performed and the materials to be incorporated, distance from lot lines and, if required by the Inspector, the relationship of structures on adjoining property, widths and grades of adjoining streets, walks and alleys and details of structural, mechanical and electrical work, including computations, stress diagrams and other essential technical data, including approval of drainage by the Town Engineer or consulting engineers. Plans and specifications shall bear the signature of the person responsible for the design and drawings. Applications for uses requiring special permits from the Zoning Board of Appeals (or the Town Board) shall contain such additional information required for such Boards to make any special findings or additional requirements and conditions specified for any such use in Use Table, Column 3, or in § 4.3.

 

Applications for uses subject to performance standards procedure shall contain such additional information set forth in § 10.3344.12(c).

 

Amendments to the application or to the plans and specifications accompanying the same may be filed at any time prior to the completion of the work subject to the approval of the Inspector.

 

Section 3. Chapter 43, Section 10.224 of the Code of the Town of Orangetown entitled “Issuance of permits” is hereby amended as follows:

 

Issuance of permits. The Inspector shall examine or cause to be examined all applications for permits and the plans, specifications and documents filed therewith. The Inspector shall approve or disapprove the application within a reasonable time but not longer than 15thirty days. Upon approval of the application and upon receipt of the fees therefor, he the Inspector shall issue a permit to the applicant upon the form prescribed by him the Inspector and shall affix his/her signature or cause his signature to be affixed thereto. Upon approval of the application, submitted both sets of plans and specifications shall be endorsed with the word “approved.” One set of such approved plans and specifications shall be retained in the files of the Inspector, and the other set shall be returned to the applicant, together with the permit and shall be kept at the building site open to inspection by the Inspector at all reasonable times. If the application, together with plans, specifications and other documents filed therewith, describes proposed work which does not conform to all the requirements of the applicable regulations, the Inspector shall disapprove the same and shall return the plans and specifications to the applicant, with notice in writing of the reasons therefor.

 

However, a permit for any use requiring a special permit as listed in the Zoning Code’s Use Table, Column 3, and any use subject to performance standards procedure under § 10.3344.12, and any other particular use requiring the approval of the Zoning Board of Appeals (or the Town Board), shall be issued only with the authorization of such boards the applicable Board or Committee.

 

Section 4. Chapter 43, Section 10.233 of the Code of the Town of Orangetown entitled “Issuance of certificate” is hereby amended as follows:

 

Issuance of certificate. Before issuing a certificate of occupancy, the Inspector shall examine, or cause to be examined, all buildings, structures and sites for which an application has been filed for a building permit to construct, enlarge, alter, repair, remove, demolish or change the use or occupancy, and may conduct such inspections as he/she deems appropriate, from time to time, during and upon completion of the work for which a building permit has been issued. There shall be maintained by the Inspector a record of all such examinations and inspections, together with a record of findings of violation of the law. A certificate of occupancy shall be either issued, or denied, for cause within 10thirty days of application therefor. However, any certificate of occupancy for the establishment of any use of a building or land requiring a special permit as listed in the Zoning Code’s Use Table, Column 3, and subject to performance standards procedure under § 10.3344.12, and any other particular use requiring the approval of the Zoning Board of Appeals (or the Town Board), shall be issued only with the authorization of such Board the applicable Board or Committee. Every certificate of occupancy for a use for which a special permit, or variance or other approval has been granted by the Zoning Board of Appeals (or the Town Board), shall contain a detailed statement of such special permit, or variance or other approval and of the conditions to which the same is subject.

 

Section 5. Chapter 43, Section 10.32 of the Code of the Town of Orangetown entitled

 

“Procedure” is hereby amended as follows:

Procedure. Meetings shall be held at the call of the Chairperson man and at such other times as the Board may determine. A quorum of the Board shall consist of three members, but, in order to reverse a decision of the Inspector, authorize a variance, render any decision within its jurisdictional powers and authority or grant a special permit, or permit a use subject to performance standards procedure an affirmative vote of at least three members shall be required. The Board shall keep minutes of its proceedings showing the vote of each member upon each question and shall keep records of its examinations and other official actions, all of which shall be filed in the office of the Town Clerk and shall be a public record.

 

Section 6. Chapter 43, Section 10.323 of the Code of the Town of Orangetown entitled “Findings and conclusions” is hereby amended as follows:

 

Findings and conclusions. After such public hearings, the Orangetown Zoning Board of Appeals (hereinafter referred to as “ZBA”) shall make written findings of fact and conclusions concerning the subject matter of such hearing, including the reasons for the grant or denial of the relief sought. As to any proposed use, such findings of fact and conclusions shall be made concerning such use, as described and represented by the applicant. In addition, the ZBA shall, in appropriate cases, impose additional conditions and safeguards in granting a special permit, or variance or other approval, or in approving an application requesting approval of conformance to the performance standards (Zoning Code § 4.1), in harmony with the general purpose and intent of the Zoning Code, and to ensure that such use is established and maintained in conformity with the special findings, and the additional requirements and conditions, upon which such permit, variance(s) or other approval of conformance to performance standards (Zoning Code § 4.1), is granted.

 

Section 7. Chapter 43, Section 10.334 of the Code of the Town of Orangetown entitled “Permit for a use subject to performance standards procedure” is hereby repealed.

 

Section 8. Chapter 43, Section 10.335 of the Code of the Town of Orangetown entitled “Continued enforcement” is hereby repealed.

 

Section 9. Chapter 43, Section 4.11 of the Code of the Town of Orangetown entitled “Applicable to all nonresidential uses” is hereby amended as follows:

 

Applicable to all nonresidential uses. No land or building shall be used or occupied for a nonresidential use in any manner as to create any dangerous, injurious, noxious or otherwise objectionable fire, explosive, radioactive or other hazard; noise or vibration; smoke, dust, odor or other form of air pollution; electrical or other disturbance; glare; liquid or solid refuse or wastes; a condition conducive to the breeding of rodents or insects or other substance, condition or element, all referred to herein as “dangerous or objectionable elements,” in a manner or amount as to adversely affect the surrounding area. However, any nonresidential use, except those With the exception of those non-residential uses expressly prohibited by § 4.4, any nonresidential use that complies with may be undertaken, and maintained, if it conforms to the district regulations, and the regulations of § 4.1, (Performance standards) shall not be in violation of this Section and may be maintained.

 

Section 10. Chapter 43, Section 4.12 of the Code of the Town of Orangetown entitled “Performance standards procedure” is hereby amended as follows:

 

Performance standards procedure. Only those uses specified in the Zoning Code’s Use Table, Columns 2, 3 and 4, are subject to the performance standards procedure of §4.121(c) 10.334, requiring the review of performance standards conformance, and a determination thereof, by the Orangetown Zoning Board of Appeals’ Industrial Use Committee (hereinafter referred to as the “ZBAIUC“) prior to approval in obtaining a building permit. or certificate of occupancy, or both (An operator of any use subject to §4.121(c) shall hereinafter be referred to as “industrial user”)., If unless the Building Inspector has reasonable grounds to believe that any other proposed use, operation or occupancy, including any building, or use or occupancy accessory to a use subject to performance standards procedure, is likely to may violate performance standards, then the Building Inspector may present such finding to the IUC, and the IUC, after providing the industrial user fifteen days’ advance notice, by any reasonable manner, and an opportunity to be heard, may (i) direct such industrial user to in which event the industrial user shall comply with the procedure in § 4.121(c) 10.334 in obtaining a building permit; or certificate of occupancy, unless the ZBA finds (ii) determine that compliance therewith is unnecessary.  When the Building Inspector has reasonable grounds to believe a building or use may be in violation of performance standards previously established by the IUC or the ZBA (as the IUC’s predecessor), the Building Inspector may present such a finding to the IUC.  After providing the industrial user an opportunity to be heard upon at least fifteen days’ advance notice, provided by any reasonable manner, the IUC may then (i) direct such industrial user to comply with the procedure in  § 4.121(c) or (ii) determine that compliance therewith is not necessary. Any alteration or change to an existing building, use, operation or occupancy, otherwise subject to § 4.1, shall not require IUC review and approval where the proposed alteration or change does not detrimentally impact or affect operations, uses or occupancies already subject to performance standard(s) established by the IUC or the ZBA (as the IUC’s predecessor).  The determination as to whether such an alteration or change poses a detrimental impact or effect shall be made by the Building Inspector (who may consult with members of the IUC, in accordance with the Public Officer’s Law).

 

Section 11. Chapter 43, Section 4.121 of the Code of the Town of Orangetown entitled “Industrial Use Committee” is hereby established as follows:

 

• 4.121. Industrial Use Committee.

 

(a). Establishment and membership.  There shall be an Industrial Use Committee of five members, hereinafter referred to as the “IUC.”  The members shall consist of (i) the Commissioner of Orangetown’s Department of Environmental Management and Engineering (“DEME”), who shall serve at its Chairperson, (ii) Orangetown’s Chief Fire Safety Inspector, (iii) the Director of Orangetown’s Office of Building, Zoning and Planning Administration and Enforcement (“OBZPAE”), (iv) Orangetown’s Public Health Engineer, and (v) the Deputy Commissioner of DEME or his or her designee who shall be a member of DEME staff.  A majority of the full membership of the IUC, regardless of vacancies, absences or recusals, shall constitute a quorum.  The Town Board may remove any member of the IUC for cause, and may then appoint a replacement member who has similar qualifications. 

 

(b). Powers.  The IUC is authorized and empowered to review applications requesting a determination for conformance to the performance standards for uses, operations and occupancies subject to performance standards (§4.1), pursuant to the procedures set forth herein. The IUC shall also be responsible for review of an alleged noncompliance with the performance standards by an industrial user to determine whether remedial action is necessary and to bring the industrial user into compliance with the applicable performance standard(s), which review shall include the approval of remedial action, as necessary.  Meetings of the IUC shall be open to the public pursuant to Article 7 of the New York State Public Officers Law. The IUC’s meetings shall not be conducted by a public hearing and the public shall not have a right to be heard; however, the industrial user/applicant shall be offered an opportunity to be heard, and the IUC may invite members of the public to submit reports or correspondence, or to be heard at a meeting, subject to any restrictions, limitations or guidelines that the IUC Chairperson deems appropriate.

 

(c).  Procedures for review of an application requesting an IUC determination that a proposed use conforms to the performance standards.

 

(i). Application.

 

An application for a review requesting an IUC determination that a proposed use conforms to the performance standards shall be submitted to the Building Inspector in septuplicate on a form prescribed by the IUC, which shall include, but not be limited to, a description of the industrial user’s operations, which shall be prepared, and signed, by a person who is qualified to answer the questions and submit documentation on behalf of the applicant.  Upon receipt, this application shall be referred by the Building Inspector to the IUC. The applicant shall also submit in septuplicate a plan of the proposed construction, installations or development, including a description of the proposed machinery, operations, products and specifications for the mechanism and techniques to be used or operated to comply with the applicable performance standards set forth in §4.1, in accordance with rules prescribed by the IUC specifying the type of information required in such plans and specifications, and an affidavit by the applicant acknowledging his or her understanding of the applicable performance standards and agreement to conform with same at all times.

 

Unless deemed necessary, by the IUC, for the IUC to undergo a proper review, no applicant will be required to reveal any secret or proprietary processes, and, if any such information is submitted to the IUC, it shall be treated as confidential if requested by the applicant, but only if the information constitutes a trade secret, or, if disclosed, would cause substantial injury to the competitive position of the applicant, within the meaning of NYS Public Officers Law § 87(2)(d).  The applicant has the burden to substantiate, to the IUC, the applicant’s assertion that the information constitutes a trade secret, or, if disclosed would cause substantial injury to the competitive position of the applicant. 

 

The fee for an application requesting the IUC’s review to determine conformance with the performance standards shall include the establishment of an escrow account, pursuant to § 14-9 of the Code of the Town of Orangetown (“Orangetown Code”), which escrowed funds shall be for the purpose of reimbursing the Town for the anticipated estimated costs of the IUC’s expert consultants’ investigations and reports required to process the application, described in the succeeding Subsection (ii) below; and which escrowed funds may be drawn on/disbursed by the Town without obtaining permission or authorization from the applicant. 

 

The Chairperson of the IUC shall determine whether an application, requesting the IUC’s review to determine conformance with the performance standards, is complete; and the Chairperson may confer, informally, with the IUC, so long as a quorum of the IUC do not participate in any such conference, or may engage or retain expert consultant(s) to advise and assist the Chairperson with respect to determining completeness of an application, the fees of which consultant(s) shall be paid by the industrial user (as per Orangetown Code § 14-9).

 

(ii). Report by expert consultants. The IUC, in its discretion, may refer the application, for investigation and report, to one or more expert consultants selected by the IUC as qualified to advise as to whether a proposed use will conform to the applicable performance standards specified in §4.1, in accordance with §4.13, the fees of which consultants shall be paid by the applicant, as per Orangetown Code §14-9.

 

(iii).  The IUC’s review of an application requesting a determination that a proposed use conforms to the performance standards entails the IUC engaging in a review of an application to determine compliance with technical requirements, and is, therefore, a Type II Action, exempt from environmental review, pursuant to SEQRA Regulation § 617.5 of 6 NYCRR Part 617.

 

(iv). Determination of the IUC. In no event more than 60 days after the IUC Chairperson determines that an application is complete, or within such further period as agreed to by the applicant and the IUC, the IUC shall determine whether the proposed use will conform to the applicable performance standards. Such determination of the IUC shall be in written form and signed by the Chairperson, and shall be filed in the offices of the Orangetown Town Clerk, OBZPAE and DEME, and shall constitute a public record. Any permit or certificate of occupancy issued by the Building Inspector shall be conditioned on, among other things, the applicant’s completed use, operation, occupancy, buildings, structures, installations, machinery, equipment and appurtenances, while being used and in operation, conforming to the IUC’s determination of conformance and applicable performance standards, and the applicant’s paying the fees for services of the IUC’s expert consultant, or consultants, deemed reasonable and necessary by the IUC for advice as to whether or not the applicant’s completed use, operation, occupancy, buildings, structures, installations, machinery, equipment and appurtenances will, while being used and in operation, conform to the applicable performance standards.

 

(d). Annual monitoring and reporting.

(i). Each and every year, on or before June 1, every industrial user shall submit an affidavit to the Building Inspector, sworn to and signed, under oath, by a qualified professional, attesting that the use, occupancy, operations, processes and methods, and the completed buildings, structures, installations, machinery, equipment and appurtenances, that were determined by the IUC to be in conformance with the applicable performance standards, as part of an application to the IUC for review of performance standards conformance, have not been altered, modified or changed, in any material manner whatsoever, other than routine maintenance and repair. If the Building Inspector determines that the said affidavit has not been executed by a qualified professional, the Building Inspector may reject the affidavit.

(ii). If the use, occupancy, operations, processes or methods or the completed buildings, structures, installations, machinery, equipment or appurtenances, that were determined to conform to the performance standards by the IUC, as part of an application to the IUC for review of performance standards conformance, have been altered, modified or changed, in any material manner whatsoever, other than routine maintenance and repair, then the industrial user shall submit, to the Building Inspector, a new description of the industrial user’s use, occupancy and operations, in form and substance as described in §4.121(c)(i); and, in addition, the industrial user shall apply for performance standards review by the IUC, in accordance with §4.1, if determined to be necessary by the Building Inspector. In making such determination, the Building Inspector may confer, informally, with the IUC, so long as a quorum of the IUC do not participate in any such conference, or may engage or retain expert consultant(s) to advise and assist with respect to such alterations, modifications or changes, the fees of which consultants shall be paid by the industrial user (as per Orangetown Code §14-9.

 

Section 12. Chapter 43, Section 4.13 of the Code of the Town of Orangetown entitled “Initial and continued enforcement provisions” is hereby repealed.

 

Section 13. Chapter 43, Section 4.13 of the Code of the Town of Orangetown entitled “Initial and continued enforcement provisions” is hereby established as follows:

 

• 4.13. Initial and continued enforcement provisions.

 

(a). Initial, and continued, compliance with performance standards is required of every nonresidential use, or change in such use, operations or occupancy, including, but not limited to, those specified in § 10.231(c) in all zoning districts where such nonresidential uses are subject to § 4.1. All building permits and certificates of occupancy issued for a use subject to §4.1 is conditioned, and contingent, upon the industrial user conforming to the performance standards, and the industrial user’s paying of the fees, to the Town of Orangetown, for services of Orangetown’s own expert consultants deemed reasonable and necessary by the Industrial Use Committee, for said consultants’ inspections, investigations, research, studies, tests, advice and/or reports to determine compliance by the industrial user with the performance standards (§ 4.1).

(b). The industrial user’s initial, and continued, compliance with the performance standards (§4.1) shall include the following:

 

(i). Upon reasonable notice, the industrial user’s consent to inspections, investigations, and/or testing on the industrial user’s site by OBZPAE, DEME, and/or the Orangetown-retained expert consultants.  Such inspections, investigations, and/or testing shall be conducted, while all mechanical equipment, machinery, installations and systems, that are appurtenant to the use that is subject to the performance standards (§4.1), are in full operation to the extent, type and/or degree that OBZPAE, DEME, and/or the Orangetown-retained expert consultants, reasonably deem necessary to verify compliance with the applicable performance standards.  In the event of an imminent threat to the health and welfare of the surrounding community, access to the industrial user’s site for purposes of such an inspection shall be permitted upon the request of OBZPAE and/or DEME.

 

(ii). The industrial user’s full, and complete, compliance with the performance standards (§4.1) shall not supersede requirements for compliance with any and all laws, statutes, rules and regulations of the New York State Department of Environmental Conservation and federal Environmental Protection Agency, or any other state or federal law, rule or regulation that also may regulate the use, occupation and/or occupancy that is subject to the performance standards (§4.1). 

 

(c). OBZPAE and/or DEME shall investigate any alleged violation of, or noncompliance with, the performance standards (§4.1) by the industrial user.  Such investigation shall be conducted in accordance with §4.13(b)(i).

 

(d). Except as provided in §4.13(g), OBZPAE and/or DEME shall refer the industrial user to the IUC for review of the alleged violation or noncompliance with the performance standards (§4.1).  Upon receiving such referral, the IUC may further investigate the alleged violation or noncompliance if the IUC deems it necessary in its discretion; and, for such further investigation, the IUC may utilize, or retain, the services of OBZPAE, DEME, and/or the Orangetown-retained expert consultants.

 

(e).  If, after providing the industrial user reasonable advance notice and an opportunity to be heard, the IUC determines that a condition of noncompliance exists, then the IUC may direct the industrial user to develop a remedial action plan to address the condition of noncompliance.  Such a plan shall be developed for presentation to the IUC within thirty (30) days of its request unless the IUC extends this period.  The IUC shall not conduct a public hearing, but shall provide the industrial user with reasonable advance notice and an opportunity to be heard.  If the industrial user (i) fails to appear before the IUC, (ii) fails to develop a remedial action plan, or (iii) presents a the remedial action plan that inadequately addresses the condition of noncompliance, then the IUC may, after providing the industrial user reasonable advance notice and an opportunity to be heard, revoke and rescind its determination of conformance with the performance standards (issued under §4.1).  Upon such revocation and rescission of the IUC’s performance standards conformance determination, any building permit and/or certificate of occupancy that was issued pursuant to the IUC’s performance standards conformance determination (§4.1) shall also be deemed revoked and rescinded.

 

(f). If a remedial action is determined to be satisfactory, or determined to be satisfactory with conditions, by the IUC, then, upon such determination, implementation of the remedial action by the industrial user shall be a condition of any active and open building permit(s) and the eventual certificate(s) of occupancy relating to same; or, if there are no active and open building permit(s), then implementation of the plan shall be incorporated, automatically and by operation of law, into the most recent subsisting certificate(s) of occupancy.

 

(g).  If OBZPAE and/or DEME reasonably determines, based on an investigation conducted pursuant to §4.13(c), that a violation of, or noncompliance with the performance standards exists that constitutes an imminent threat to the health and welfare of the surrounding community, then OBZPAE and/or DEME may forego referring a condition of noncompliance to the IUC under §4.13(d) and proceed to undertake enforcement against an industrial user through the prosecution of an alleged violation(s) in the Orangetown Justice Court pursuant to §§ 10.2, 10.6 and/or 24C(c), and/or commencement of a civil action or proceeding in the New York State Supreme Court, pursuant to New York State Town Law §135(1) and/or §268(2).  However, OBZPAE’s and/or DEME’s election to forego referring a condition of noncompliance to the IUC shall not be deemed a waiver or relinquishment of OBZPAE’s and DEME’s rights to proceed with such referral if either (or both) should elect to do so, whether contemporaneously while the Justice Court prosecutions and/or NYS Supreme Court civil action or proceeding are pending, or after any such prosecutions, and/or civil action or proceeding, have concluded.

 

Section 14. Chapter 43, Section 4.182 of the Code of the Town of Orangetown entitled “Odors” is hereby repealed.

 

Section 15. Chapter 43, Section 4.182 of the Code of the Town of Orangetown entitled “Odors” is hereby established as follows:

 

• 4.182 Odors.

 

(a). No person or business entity shall emit, or cause, generate or produce the emission of, or allow to be emitted, objectionable odors beyond the property borders of the emitting source.

(i) Odors shall be deemed objectionable when an exceedance of the standard in §4.182(b) is documented by the Town in accordance with the procedures in this section, thereby evidencing that the odor is offensive, foul, unpleasant, or repulsive, and likely could, or does, cause injury, detriment, nuisance or annoyance to persons or to the public.

(b). A documented assessment shall be performed by the Building Inspector or Code Enforcement Officer utilizing an olfactory field instrument calibrated in accordance with the instrument’s operational standards and manufacturer’s specifications.  In utilizing this olfactory field instrument, one volume of odorous air shall be diluted with seven volumes of odor-free air.  A detection shall have occurred if, after such dilution, an odor remains perceptible to the user.  Measurement of objectionable odors shall follow the measurement methodology set forth at §4.18.

(c).  Repeated complaints.  If the Town receives five (5) or more complaints from individuals representing separate households or businesses over the course of a seven (7) day period, or fifteen (15) or more complaints over the course of a thirty (30) day period, a Building Inspector or Code Enforcement Officer, after investigation, which to the extent reasonably possible includes a meeting with the industrial user, may issue a Notice of Repeated Reported Occurrence (“Notice”) to the industrial user alleged to be emitting the odors.  The Notice shall require the industrial user to meet with the IUC for evaluation of the reported complaints and formulation of a remedial action if an objectionable odor is documented in accordance with §4.182(b), as determined to be necessary by the IUC, and in accordance with § 4.121(b), § 4.13(e) and § 4.13(f). The Town’s odor complaint records shall include:

 

(a) name, address, email and phone number of complainant;

(b) time and date of submission of complaint to the Town;

(c) description of nuisance odor;

(d) estimated location or source of nuisance odor; and

(e) if possible, prevailing wind or weather conditions observed.

 

Section 16. Chapter 24C, Section 24C-3 of the Code of the Town of Orangetown entitled “Disposal of debris and litter” is hereby amended as follows:

 

1. It shall be an offense for any person to abandon, leave, dump, store or keep any nuisance, hazard, debris and litter, or matter attractive to vermin upon any public highway, road, street, alley or thoroughfare, including any portion of the right-of-way thereof or any other public lands or upon any privately owned property within the unincorporated portion of the Town of Orangetown except as permitted by Subsections Band CD hereof.

 

4. The owner, tenant or occupant of property being used for residential or commercial purposes located within the unincorporated portion of the Town of Orangetown is hereby required to maintain at all times one or more covered dumpsters, containers or enclosures of adequate size to temporarily store all nuisance, hazard, debris and litter until removed. The failure to comply with this subsection shall be deemed an offense.
6. Privately owned property shall be maintained so that it does not create any dangerous, injurious, noxious or otherwise objectionable fire, explosive, radioactive or other hazard; noise or vibration; smoke, dust, odor or other form of air pollution; electrical or other disturbance; glare; liquid or solid refuse or wastes; a condition conducive to the breeding of rodents or insects or other substance, condition or element, in a manner or amount as to create a nuisance and adversely affect the surrounding area. Properties that are subject to, and comply with, performance standards under Chapter 43, Section 4.13 of the Code of the Town of Orangetown shall be deemed in compliance with this subsection.

 

1. CD. Except where physically impossible, a dumpster shall not be located within the front yard of any premises and shall be surrounded on all sides by an opaque fence or wall enclosure of durable construction no lower than one foot above the height of the dumpster. All nonconforming, preexisting dumpsters shall be conformed to this requirement within six months of the adoption of this chapter. The failure to comply with this subsection shall be deemed an offense.

 

1. DE. In regard to the curbside pickup of trash containers (trash cans) and items for bulk pickup by private carter, these items shall not be set out prior to 8:00 a.m. on the day before each pickup and shall be retrieved before 8:00 a.m. on the day after each pickup.

 

1. EF. In all multiple dwellings and commercial sites, the owner, managing agent or person in charge of the building must provide a totally enclosed bin or shed-type structure for housing the necessary amount of garbage containers and receptacles to meet the needs of the occupants therein. The site of the bin must be in an inconspicuous location. In addition, all required garbage containers and receptacles must be landscaped or screened in accordance with the provisions of the Zoning Code of the Town of Orangetown.

 

1. FG. The Town Board is hereby authorized to establish one or more temporary or permanent locations wherein residents of the unincorporated portion of the Town of Orangetown may bring green waste, such as yard waste, brush, leaves, and grass clippings or items constituting a nuisance, hazard, debris or litter (except garbage, toxic materials and chemicals, rubbish, tobacco products and packaging, large quantities of construction materials, bags of fertilizer, pet excrement, and bottles, cans and plastic containers) for disposal in containers provided for such purpose. The use of such containers by residents for personal noncommercial disposal of waste as enumerated above is deemed to be consistent with the purposes of this chapter and shall not constitute an offense. Any failure to abide by rules and regulations concerning the above, or concerning Subsection GH below, or any use for commercial purposes or disposal by nonresidents shall be deemed an offense hereunder.

 

1. GH. In order to use locations established pursuant to Subsection FGabove, residents of the unincorporated portion of the Town of Orangetown must first obtain a permit from the Superintendent of Highways. No one is permitted to use these locations without possessing a duly issued and valid permit. The only persons eligible to obtain a permit are noncommercial residents of the unincorporated portion of the Town of Orangetown. Even if eligible for a permit, a person may not use a facility for commercial purposes in any respect, and permissible use is limited to the depositing of permissible materials derivative of the residential use of the permit holder’s residence. Rules and regulations concerning the issuance and use of these permits shall be promulgated by the Superintendent of Highways, in a manner and substance not inconsistent with Subsection FGabove, the remainder of the Code of the Town of Orangetown, and state and federal law. The Town Clerk, in addition to the Superintendent of Highways, may, at the discretion of the Town Clerk, also issue said permits. Permits issued by the Town Clerk are subject to all rules and regulations promulgated by the Superintendent of Highways.

 

Section 17. Chapter 14, Section 9 of the Code of the Town of Orangetown entitled “Fees for consultant review” is hereby amended as follows:

 

(A).  In addition to the application fees required to be paid by an applicant, the applicant shall also deliver todeposit with the Town funds to be placed in escrow in the Town’s trust and agency account, without interest, which escrowed funds shall be deposited for the purpose of to reimbursinge the Town for any and all of the Town’s fees and expenses incurred in connection with the Town’s review of the application, including, but not limited to, engineering and planning consultants’ fees, such as, but not limited to, those incurred regarding application reviews before the Planning Board, Zoning Board of Appeals, Industrial Use Committee (“IUC”) andor Town Board. The amount of the deposit is toshall be set by theOrangetown’s Office of Building, Zoning, and Planning Administration and Enforcement (“OBZPAE”), in consultation with the applicant, the Town’s and consultants (if any) and/or any other Town Department or Office, such as the Department of Environmental Management and Engineering (“DEME”), based upon the anticipated fees and expenses estimated to be incurred by the Town regardingon (i) OBZPAE’s processing of permit application(s) regarding the project, both prior to and after issuance of a permit, and/or (ii) reviews by the said Boards and the IUC; and the escrowed funds may be drawn on/disbursed by the Town without obtaining permission or authorization from the applicant.

 

(B).  If the amount deposited falls below 50% of the original deposit, the applicant shall deposit additional funds to the Town to replenish the escrow account to pay for fees and expenses rendered to the Town, or anticipated to be rendered, for such services. Such additional funds shall be delivered to the Town before the application is placed on the agenda and any further consideration of the applicant’s application takes place.  If, for any reason, an escrow deposit account has not been established by the applicant, or if the applicant’s escrow deposit account is no longer active, then the applicant shall promptly reimburse the Town, upon demand by the Town, for the fees and expenses of the Town’s consultant(s); and the applicant shall be liable to the Town for any such fees and expenses that are not reimbursed to the Town by the applicant.

 

(C).  The Planning Board, Zoning Board of Appeals, Industrial Use Committee andor Town Board shall neither place the application on the agenda, nor give further consideration to the applicant’s application until all application, review fees imposed on the applicant have been paid to the Town.

 

(D).  Escrow funds shall be refunded to the applicant afterwhen the applicant formally withdraws the permit application, or formally withdraws the application from consideration by the applicableappropriate bBoard(s) and the IUC (as applicable), or when the applicant receives a certificate of occupancy or certificate of compliance (as applicable) from OBZPAEfinal determination from the appropriate board; in either case, all reimbursable fees and expenses incurred by the Town shall first be deducted from the escrow account, leaving an unencumbered balance that is not required by the permitting authority to pay consulting costs or fees attributable to the application pursuant to this section. In no event shall the fees and expenses reimbursed by the applicant, pursuant to this section, exceed the fees and expenses incurred by the Town for review of the project.

 

€.  The imposition of Town consultants’ review fees and expenses are in addition to, and not in place of, other Town application fee schedules currently in force.

 

Section 18. Chapter 6, Section 5, Subsection E of the Code of the Town of Orangetown entitled “Duties and powers of Building Inspector” is hereby amended as follows:

…

 

4. Whenever the same may be necessary or appropriate to assure compliance with the provisions of applicable statutes, codes, laws, ordinances or regulations relating to the use, maintenance or occupancy of land or buildings, including, but not limited to, assuring compliance with the performance standards set forth in § 4.1 of Chapter 43 (Zoning Code) of the Orangetown Code, and/or to assure compliance with the conditions of any applicable Orangetown land use board approval decisions, the Building Inspector may inspect, investigate and/or conduct tests, on site of private property that is the subject of an open Building Permit application or a nonresidential use that is subject to the performance standards (hereinafter referred to as “industrial user”), which may include, with regard to the performance standards, inspecting, investigating and/or conducting tests while all mechanical equipment, machinery, installations and systems, that are appurtenant to the use that is subject to the performance standards, are in full operation. For purposes of said inspections, investigations and/or tests, the Building Inspector may engage, employ or retain the services of the Orangetown Department of Environmental Management and Engineering (hereinafter referred to as “DEME”), and/or expert consultants, to the extent, type and/or degree that the Building Inspector, DEME, and/or the expert consultants, deem necessary. The said inspections, investigations and/or testing, on site of private property, shall only be conducted with the consent of the property owner, or a person in dominion, control or possession of, or with management or supervisorial authority over, the property; or at any reasonable hour if the Building Inspector has a reasonable suspicion, based on specific and articulable facts, taken together with rational inferences from those facts, associated with the particular property, that a violation of, or noncompliance with, the performance standards set forth in Zoning Code § 4.1, is being committed or is occurring, or has been committed or has occurred; or by execution of a judicially issued search warrant.  In addition to the powers and duties set forth in this section, the Building Inspector shall also have all inspection and enforcement powers and duties set forth in the performance standards (Zoning Code § 4.1).

 

(1) If, as a result of the Building Inspector’s said inspection, investigation and/or testing, relating to an alleged violation of, or noncompliance with, the performance standards (Zoning Code § 4.1) on the part of any industrial user, the Building Inspector has reasonable grounds to believe that a violation, or noncompliance, exists, subject to the provisions of Orangetown Zoning Code § 4.182 (as may be applicable), the Building Inspector shall notify the Zoning Board of Appeals of the occurrence or existence of such possible violation, or noncompliance, in accordance with Zoning Code § 10.335.

(2) If, after public hearing on due notice, in accordance with Zoning Code § 4.13, the Zoning Board of Appeals finds that a violation, or noncompliance, occurred or exists, and revokes and rescinds its performance standards (Zoning Code § 4.1) approval decision, then the Building Inspector may revoke and rescind any Building Permit and/or Certificate of Occupancy that had been issued based upon such approval decision.

 

Section 19. Ratification, Readoption and Confirmation

 

Except as specifically modified by the amendments contained herein, Chapter 6, Chapter 14 and Chapter 43 of the Code of the Town of Orangetown are otherwise to remain in full force and effect, and are otherwise ratified, readopted and confirmed.

 

Section 20. Numbering for Codification

It is the intention of the Town of Orangetown and it is hereby enacted, that the provisions of this Local Law shall be included in the Code of the Town of Orangetown; that the sections and subsections of this Local Law may be re-numbered or re-lettered by the Codifier to accomplish such intention; that the Codifier shall make no substantive changes to this Local Law; that the word “Local Law” shall be changed to “Chapter,” “Section” or other appropriate word as required for Codification; and that any such rearranging of the numbering and editing shall not affect the validity of this Local Law or the provisions of the Code affected thereby.

 

Section 21. Severability. The provisions of this Local Law are separable and if any provision, clause, sentence, subsection, word or part thereof is held illegal, invalid or unconstitutional, or inapplicable to any person or circumstance, such illegality, invalidity or unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, subsections, words or parts of this Local Law or their petition to other persons or circumstances. It is hereby declared to be the legislative intent that this Local law would have been adopted if such illegal, invalid or unconstitutional provision, clause, sentence, subsection, word or part had not been included therein, and if such person or circumstance to which the Local Law or part hereof is held inapplicable had been specifically exempt there from.

 

Section 22. Effective Date

 

This local law shall take effect immediately filing with the Office of the Secretary of State of the State of New York.