Town of Fishkill, NY
Dutchess County
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Table of Contents
Table of Contents
[Added 6-17-2004 by L.L. No. 5-2004]
A. 
Intent and purpose. It is the intent of the Town of Fishkill to provide guidelines, regulations and incentives for the development of moderately priced dwelling units for persons of low or moderate income levels. The Town recognizes the severity of the worsening local and regional shortage of affordable housing. It concludes that the issue adversely affects the quality of life of its residents and threatens to undermine local economic diversity of the type necessary to maintain a healthy tax base and adequate tax revenues in the face of the continually escalating costs of local government. Essentially, the Town concludes that the creation of affordable housing stock, and the proper administration and enforcement of how that resource is allocated within the community, represents a fundamental and urgent function of local government. Accordingly, the Town Board and the Planning Board, in the course of reviewing applications for legislative or administrative approvals, respectively, of residential land development applications, particularly but not limited to those which entail proposals for construction of multifamily housing types, shall take into account the extent to which the project sponsor(s) includes or fails to include provision for affordable housing as defined within this article. Stated another way, the Town concludes that the extent to which new residential land development proposals include, or fail to include, affordable housing components may yield relative socioeconomic impacts, either favorable or unfavorable, upon community character. Legislative or administrative actions on such proposals by the Town Board, or administrative actions by the Planning Board, should take into consideration, for purposes of exercising discretion in the context of local land use regulation and for purposes of reviews under the State Environmental Quality Review Act, the extent to which those impacts may exist, whether they are potentially adverse, and, if so, the extent to which, and the manner in which, such impacts are proposed to be mitigated to levels falling short of genuine significance, if at all, by the project sponsor(s) during the course of project reviews.
[Amended 10-12-2004 by L.L. No. 11-2004]
B. 
Definitions. As used in this article, the following terms shall have the meanings indicated:
[Amended 4-18-2007 by L.L. No. 4-2007]
ADJUSTED MEDIAN FAMILY INCOME
The United States Department of Housing and Urban Development's (HUD) median family income limits for the Poughkeepsie-Newburgh-Middletown Metropolitan Service Area, as adjusted depending on number of persons in a family.
AFFORDABLE HOUSING
Residential units available for:
(1) 
A sales price within the means, as hereafter provided, of a household income which is 100% or less of the adjusted median family income; or
(2) 
A rental price within the means, as hereafter provided, of a household income which is 80% or less of the adjusted median family income.
MARKET-RATE UNIT
A residential unit available for a sales price or at a rent that is not restricted by the requirements of this section.
C. 
Requirements and incentives for participation.
(1) 
Owners or developers who wish to include affordable housing units in their subdivisions or developments shall apply to the Planning Board for permission to do so. Such application shall be made simultaneously with, and within the context of, an application for preliminary subdivision approval or an application for site development plan approval or special permit, as may be appropriate.
(2) 
The Planning Board may approve an application by a developer to include affordable housing units in the following zoning districts: R-40, R-20, R-15, R-MF-3, and R-MF-5.
(3) 
Developers who propose to include affordable housing may be entitled to pursue an increase of the permitted number of residential units in R-40, R-20 or R-15 Districts, or the permitted number of density units in the R-MF-3 or R-MF-5 Districts, of as much as 15% of the units which could be permitted in the Planning Board's judgment if the land were developed into lots or units conforming to all the normally applicable requirements of this section, Chapter 132, Subdivision of Land, Dutchess County Department of Health regulations and all other applicable standards.
[Amended 4-18-2007 by L.L. No. 4-2007]
(4) 
For every two approved affordable housing units, the developer shall be entitled to build one additional market-rate unit, up to a maximum unit count of 15% above the permitted number of units, as calculated in Subsection C(3), above. For example, if a developer is allowed to construct 100 units under all applicable requirements and regulations and the developer agrees to construct 10 affordable housing units, then the developer would be entitled to an additional five market-rate units, for a total of 115 units (100 market-rate plus 10 affordable housing units plus five bonus market-rate units).
[Amended 10-12-2004 by L.L. No. 11-2004; 4-18-2007 by L.L. No. 4-2007]
(5) 
To accommodate inclusion of affordable housing units into the development, the Planning Board is authorized to modify zoning regulations as follows:
(a) 
In R-40, R-20 and R-15 Districts, the Planning Board shall have the ability to modify minimum area and dimensions required for lots, subject to the limitations that no more than 25% of the lots shall be allowed to enjoy a reduction of lot area and dimensions, and no lot shall have less than the minimum area and dimensions required for lots in the next-less-restrictive residential zoning district to the one in which the property is located.
(b) 
In R-MF-3 and R-MF-5 Districts, Planning Board ability to modify yard and setback regulations shall be governed by the criteria set forth within § 150-61A(7) of this chapter.
(c) 
Maximum impervious surface area.
[Added 4-18-2007 by L.L. No. 4-2007]
[1] 
In the R-MF-3 District, maximum impervious surface area shall not cover more than 35% of the lot area.
[2] 
In the R-MF-5 District, maximum impervious surface area shall not cover more than 45% of the lot area.
D. 
Development standards. Affordable housing units must meet the following standards:
(1) 
All affordable housing units shall be physically integrated into the design of the subdivision or development. Affordable housing units shall be constructed to the same quality standards as market-rate units, and they should include a comparable number of bedrooms. The exterior finishes of affordable units shall be indistinguishable from all other units. The developer may, however, propose different appliances and interior hardware where such substitutions would not adversely impact the livability of the unit. Appliances, lights, and all components of HVAC systems shall be Energy Star compliant.
[Amended 4-18-2007 by L.L. No. 4-2007]
(2) 
Unit requirements.
[Amended 4-18-2007 by L.L. No. 4-2007]
(a) 
Unit size.
[1] 
Schedule. The minimum permitted habitable floor area for affordable housing units shall be set forth in the Schedule of Permissible Minimum Unit Size for Affordable Housing established periodically by resolution of the Town Board. The schedule shall be available in the office of the Town Clerk.
[2] 
Calculation of minimum permitted habitable floor area. The minimum permitted habitable floor area, as defined by the Schedule described in Subsection D(2)(a)[1], above, shall not include common areas, stairways, decks, storage or hallways.
(b) 
Unit density. The minimum and maximum number of residents who may reside in a dwelling unit shall be as follows:
[1] 
Efficiency units:
[a] 
Minimum: one.
[b] 
Maximum: one.
[2] 
One-bedroom units:
[a] 
Minimum: one.
[b] 
Maximum: two.
[3] 
Two-bedroom units:
[a] 
Minimum: two.
[b] 
Maximum: four.
[4] 
Three-bedroom units:
[a] 
Minimum: two.
[b] 
Maximum: six.
(3) 
All affordable housing units shall generally be physically distributed throughout the subdivision or development in the same proportion as other housing units, though the Planning Board may use discretion in reviewing and approving distribution.
(4) 
The landowner and the developer, if different, shall execute a declaration, in recordable form, at the time of subdivision or development approval, identifying the units which are affordable housing units and restricting their future sales price and/or rental terms under the provisions of this section. The declaration shall be in a form acceptable to the Town Attorney. It shall include a provision requiring that every deed conveying title to an affordable housing unit shall include the following paragraph, subscribed to in the instrument by both seller and buyer, to inform all future sellers and buyers that this unit is an affordable housing unit subject to the provisions of this section:
"This dwelling has been constructed for use by low/moderate-income families pursuant to Chapter 150, Article IXB, of the Fishkill Town Code. Its future sale (including resale) or rent must be to persons who qualify under that article's income requirements and at a price in accordance with the Fishkill Town Code. The Town of Fishkill shall have the power to enforce this clause and to recover reasonable attorney's fees and other costs incurred in successful efforts to remedy breaches of said provisions of local law."
E. 
Eligibility and preference to rent or purchase.
[Amended 4-18-2007 by L.L. No. 4-2007]
(1) 
To be eligible to purchase an affordable housing unit, the household's income must be no more than 100% of the adjusted median family income. To be eligible to rent an affordable housing unit, the household's income must be no more than 80% of the adjusted median family income.
(2) 
Preference to purchase or rent.
(a) 
Among income-eligible households, preference to purchase or rent affordable housing units shall be calculated by a priority points system, as outlined in Subsection E(2)(d) below.
(b) 
Income-eligible households shall be assigned points from each category listed below. The maximum number of points any one income-eligible household can receive from each category is limited to the highest single point value within that section. Points cannot be combined within each category, should an income-eligible household satisfy more than one of the classifications in that category. For example, under Subsection E(2)(d)[1] below, a former resident of the Town of Fishkill under Subsection E(2)(d)[1][d] who also lives in Dutchess County, Subsection E(2)(d)[1][e], will receive a maximum of three points.
(c) 
The assignment of points, pursuant to this section, is calculated based on the characteristics of only one person from each income-eligible household. The income-eligible household can select the individual who will be the subject of the calculation.
(d) 
Priority point categories.
[1] 
Residency:
[a] 
Town of Fishkill resident for a period of at least 10 consecutive years: 10 points.
[b] 
Town of Fishkill resident for less than 10 consecutive years: five points.
[c] 
A nonresident, over the age of 62, who is the parent of a person who is a resident of the Town of Fishkill: three points.
[d] 
A nonresident who was formerly a resident of the Town of Fishkill for a period of at least 10 consecutive years: three points.
[e] 
A resident of Dutchess County: two points.
[f] 
A former resident of an affordable housing unit in the Town of Fishkill: two points.
[2] 
Employment:
[a] 
A municipal employee of the Town of Fishkill: five points.
[b] 
A municipal employee of the County of Dutchess: three points.
[c] 
An employee of the Beacon City School District, the Wappingers Central School District or the Haldane Central School District: five points.
[d] 
An employee of a school district located in Dutchess County: two points.
[e] 
A health-care worker employed within the Town of Fishkill: five points.
[f] 
A health-care worker employed within Dutchess County: two points.
[g] 
A person employed within the Town of Fishkill: two points.
[h] 
A person employed within Dutchess County: one point.
[3] 
Emergency services work: firefighter, ambulance service/district employee, emergency medical technician (EMT) or law enforcement officer (the "positions"):
[a] 
A person who serves as a full-time employee in one of the above described positions and actively serves in such position within the Town of Fishkill: five points.
[b] 
A person who serves as a volunteer in one of the above-described positions and has actively served in such position within the Town of Fishkill for a minimum period of 24 months: five points.
[c] 
A person who serves as a full-time employee in one of the above-described positions and actively serves in such position within Dutchess County: three points.
[d] 
A person who serves as a volunteer in one of the above-described positions and has actively served in such position within Dutchess County for a minimum period of 24 months: three points.
[4] 
Military service:
[a] 
An active member of the Armed Forces of the United States: five points.
[b] 
A member of the Reserve/National Guard: five points.
[c] 
An honorably discharged member of the Armed Forces of the United States: five points.
(3) 
Ability to rent an affordable housing unit if there is no income-eligible household available to rent the unit.
(a) 
The Town of Fishkill recognizes that an affordable housing rental unit may become available at a point in time when no income-eligible household is on the eligibility list, as defined in § 150-50.4K(5), or that all of the income-eligible households on the eligibility list may reject placement in a given unit. The Town does not wish for good rental units to remain vacant for extended periods of time and, therefore, will allow an affordable housing unit to be rented as a market-rate unit in accordance with the terms of this section.
(b) 
A landlord shall be permitted to rent an affordable housing rental unit as if it were a market-rate unit under the following terms and conditions:
[1] 
The administrator, as defined in § 150-50.4J(1), is unable to place an income-eligible household in the unit because:
[a] 
There is not an income-eligible household on the eligibility list; or
[b] 
All income-eligible households on the eligibility list have rejected placement in the affordable housing unit.
[2] 
The administrator shall notify the Town Board, in writing, that an income-eligible household cannot be placed in the unit based on one of the reasons provided for in this subsection.
[3] 
After receipt of the notification from the administrator that an income-eligible household cannot be placed in the unit, the Town Board shall determine, in its sole discretion, by written resolution, whether the affordable housing unit should be rented as a market-rate unit.
[4] 
The landlord shall pay the difference between the rent being paid by the market-rate unit tenant and the rent that would have been paid by an affordable housing unit tenant to the Town of Fishkill Affordable Housing Trust Fund. Payments of amounts due under this subsection shall be delivered to the Town as follows:
[a] 
For the months of January through June in a given calendar year, payment shall be delivered to the Town no later than July 31 of that calendar year.
[b] 
For the months of July through December of a given calendar year, payment shall be delivered to the Town no later than January 31 of the following calendar year.
(c) 
When renting an affordable housing unit as a market-rate unit, pursuant to this section, the lease term shall be for a period of no longer than two years.
(d) 
The landlord shall provide written notice to the administrator of the future vacancy of an affordable housing unit being rented, pursuant to this section, as a market-rate unit at least 60 days prior to the date on which the term of the lease will expire or, should the tenant vacate the unit before the end of the lease term, such shorter notice as is reasonable.
[1] 
Upon receipt of such notice, the administrator shall determine whether the placement of an income-eligible household is possible or whether the renewal of the current lease or the reletting of the unit to a noneligible household is an appropriate result.
[2] 
If the administrator determines that renewal of the current lease or the reletting of the unit to a noneligible household is an appropriate result, the Town Board shall, in its sole discretion, by written resolution, either approve or overrule the administrator's determination.
F. 
Calculations of initial sales price and permissible rent.
[Amended 4-18-2007 by L.L. No. 4-2007]
(1) 
Initial sales price. The initial sales price for a particular affordable housing unit shall be calculated such that the annual cost of the sum of principal, interest, taxes, insurance and common charges, as applicable, shall not exceed the result of the following calculation: 80% of the adjusted median family income multiplied by 30%.
(a) 
For example, assuming that the adjusted median family income for a family of four is $73,400, the calculation would be as follows:
[1] 
Step 1: $73,400 by 80% = $58,720.
[2] 
Step 2: $58,720 by 30% = $17,616.
(b) 
Therefore, the annual cost of the sum of principal, interest, taxes, insurance and common charges, as applicable, shall not exceed $17,616 for a family of four.
(2) 
Permissible yearly rent. The maximum yearly rent, excluding utilities, for a particular affordable housing unit shall not exceed the result of the following calculation: 70% of the adjusted median family income multiplied by 25%.
(a) 
For example, assuming that the adjusted median family income for a family of four is $73,400, the calculation would be as follows:
[1] 
Step 1: $73,400 by 70% = $51,380.
[2] 
Step 2: $51,380 by 25% = $12,845.
(b) 
Therefore, the maximum yearly rent, excluding utilities, shall not exceed $12,845 for a family of four.
G. 
Continued eligibility to rent.
(1) 
An applicant(s) for an affordable rental unit referred to in this section shall, if eligible, be entitled to a lease for a term of no more than two years. As long as an affordable housing resident remains eligible and complies with the financial reporting obligations of Subsection G(2), said resident shall be offered two-year lease renewals.
(2) 
The rental resident(s) shall annually provide a verified statement of the identity of household occupants and their respective incomes to the Town's administrator of this section, and shall otherwise comply with additional reasonable requests for household income verification made by the Town, as a condition of the right to continue in residence. If a rental unit's occupying household's income shall come to exceed by more than 20% the maximum then allowable, as defined in this article, and if there is at that time another eligible applicant, said occupants may complete the current lease term and shall be offered a market rate rental unit, if available as of the end of the lease term. If no such dwelling unit shall be available, the occupants shall be allowed to sign one additional one-year lease for the affordable income dwelling unit, but renewal of the lease shall not be offered at expiration of the one-year lease.
(3) 
All leases shall include a clause, suitable to the Town administrator of this article, that the landlord is obligated to take all relevant and timely steps, including litigation, to recover possession of an affordable housing unit in which ineligible occupants hold over beyond a legitimate lease term and that the holdover occupants will be responsible to defray the expenses, including but not limited to reasonable attorney's fees and court costs incurred by the landlord in pursuit of efforts to recover possession.
H. 
Resale: calculation of permissible resale price. The title to affordable dwelling units shall be restricted so that, in the event of any resale, the resale price shall not exceed the greater of the following:
[Amended 4-18-2007 by L.L. No. 4-2007]
(1) 
The then maximum sales price for said unit, as determined in accordance with this section; or
(2) 
The price that was paid at the time the unit was purchased by the current owner.
I. 
Restriction on sale or lease and subsequent resale.
(1) 
Every applicant to purchase or rent an affordable housing unit shall certify, on a form prescribed by the Town, that the applicant is acquiring or leasing said unit as the primary place of residence for the applicant and his/her family. No developer shall sell or lease any unit without first obtaining such certificate from the purchaser or lessee, and filing the certificate with the Town.
(2) 
Purchasers of affordable housing units shall be permitted to lease said units to eligible applicants under the provisions of this section. This limitation upon rental shall be included in deed restrictions. The Town shall expressly be provided with standing to enforce the restriction.
(3) 
Subleasing of affordable housing units is prohibited. Landlords of rented units must provide proof to the Town that their lease prohibits the lessee from subleasing his/her unit to other parties.
J. 
Administration and enforcement.
(1) 
The Town Board may administer the affordable housing requirements of this section. Alternatively, the Town Board may appoint an employee(s), establish a committee, or contract with an outside entity to administer the affordable housing requirements of this article (the "administrator").
(2) 
Prior to the issuance of a certificate of occupancy, the administrator of this section's requirements shall inform the owner and/or the project manager of the maximum rental or sales charge which may be established for the affordable dwelling units and the maximum gross household income for eligibility for occupancy of said units. On or before April 1 of each year thereafter, the administrator shall notify the owner and/or the project manager of any annual changes in such information.
(3) 
The owner and/or the project manager, as appropriate, shall annually provide proof to the administrator, on or before June 1 of each year, that the current rental price of all affordable units complies with the terms of this section.
(4) 
The owner of an affordable unit, before the sale of such unit, shall provide proof to the administrator that the sales price complies with the terms of this section and shall provide a copy of the proposed deed to the administrator for approval in advance of sale.
K. 
Procedure for applicants.
(1) 
Households interested in being placed into an affordable housing unit shall complete an application, available at the Town Hall of the Town of Fishkill, and submit such application to the administrator.
(2) 
By April 1 of each year, the administrator shall review applications received and certify eligible applicants for rental or sale of affordable dwelling units.
(3) 
The administrator shall maintain a list of all applicants certified, pursuant to the requirements of this section, as eligible to purchase or rent an affordable housing unit.
(4) 
Applications must be received prior to January 1. The administrator may, in its discretion, consider applications received after this date.
(5) 
Eligibility list.
[Amended 4-18-2007 by L.L. No. 4-2007]
(a) 
The eligibility list of income-eligible households will be arranged in numerical order based on the number of priority points, as determined by Subsection E(2)(a) through (d), above, so that the income-eligible household that has accumulated the highest number of points will be located at the top of the list, and the income-eligible household that has accumulated the fewest number of points will be located at the bottom of the list.
(b) 
In the event that two or more income-eligible households have accumulated an identical number of priority points, the arrangement of income-eligible households within that point score will be arranged by date of application submission, so that the income-eligible household that was first to submit an application will be placed in a higher spot on the eligibility list. In the event that two or more income eligible households that have accumulated an identical number of priority points submitted their applications at the same time, a lottery will be held to determine which household will be placed in a higher spot on the eligibility list.
(6) 
When an affordable housing unit becomes available, an offer to fill that unit will be made to the applicant at the top of the eligibility list. Should that applicant decline placement in the affordable housing unit, the administrator shall make an offer to fill that unit to the next applicant on the eligibility list, and so on.
[Amended 4-18-2007 by L.L. No. 4-2007]
(7) 
When an affordable housing unit becomes available, the eligible applicant must demonstrate to the administrator that his/her household incomes continues to meet the eligibility requirements of this section. The Town shall have the right to demand disclosure of relevant financial records of the applicant.
L. 
Establishment of the Town of Fishkill Affordable Housing Trust Fund.
(1) 
The Town hereby establishes an Affordable Housing Trust Fund, the purposes of which shall include:
[Amended 10-12-2004 by L.L. No. 11-2004]
(a) 
Funding of costs to be incurred by the Town in the administration and enforcement of the affordable housing program established within this section and including such activities with respect to affordable units established under § 150-50.3 of this chapter, as well as funding of such future affordable housing programs as the Town may otherwise establish by legislation, order, or resolution;
(b) 
Defraying consulting fee expenses incurred, or to be incurred, by the Town in the establishment of such affordable housing programs;
(c) 
Defraying the cost of improvements to municipal infrastructure, including but not limited to roads, water, sewer, and drainage improvements, to the extent such capital expenditures are incurred in order to promote the development of affordable housing;
(d) 
The deposit of payments proffered by project sponsors in voluntary mitigation, where deemed suitable and appropriate by the Town, of any private residential development proposal's failure to provide affordable housing; and
(e) 
Any other purpose authorized by state or local law in connection with the expansion or improvement of affordable housing opportunities within the Town, including but not limited to establishment, to the extent authorized by law, of a program of grants or loans to not-for-profit or for-profit entities.
(2) 
Developer contributions.
(a) 
Each developer of a subdivision or development containing affordable housing units, as a condition of approval, shall be required to make a monetary contribution to the Affordable Housing Trust Fund. The amount of such contribution shall be based on the number of affordable housing units included in the subdivision or development.
(b) 
The Town Board shall, by resolution, determine by schedule the applicable monetary contribution.
(c) 
The Affordable Housing Trust Fund may be employed for deposit of the proceeds of public grants or loans to the Town of Fishkill to promote affordable housing opportunities, administration and/or enforcement, as well as to accept private monetary contributions to the Town for that donative purpose or for purposes of voluntarily mitigating the potential socioeconomic and environmental impacts of not providing affordable housing in residential development proposals of significant scale and dimension, particularly where, through the device of rezoning or otherwise, the developer seeks to procure increased density of development by means other than pursuit of the affordable housing incentives set forth in this section.
[Added 10-12-2004 by L.L. No. 11-2004]
M. 
Violations. Violations of any of the provisions of this section shall be subject to the penalties and remedies found within § 150-77 of this chapter.