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:
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EPOD (1)
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Wetland Protection Overlay District
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EPOD (2)
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Steep Slope Protection Overlay District
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EPOD (3)
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Woodland Protection Overlay District
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EPOD (4)
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Floodplain Protection Overlay District
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EPOD (5)
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Watercourse Protection Overlay District
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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.
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.
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:
[Amended 2-3-2021 by Res. No. 21T-066]
(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).
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.
