Town of Fishkill, NY
Dutchess County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Fishkill 7-10-2013 by L.L. No. 4-2013. Amendments noted where applicable.]
GENERAL REFERENCES
Fire prevention — See Ch. 74.
This chapter shall be known as the "Town of Fishkill Outdoor Furnace Local Law." It is adopted pursuant to Municipal Home Rule Law § 10.
Although outdoor furnaces may provide an economical alternative to conventional heating systems, concerns have been raised regarding the safety and environmental impacts of these heating devices, particularly the production of offensive odors and potential health effects of uncontrolled emissions.
As used in this chapter, the following terms shall have the meanings indicated:
FIREWOOD
Trunks and branches of trees and bushes, but does not include leaves, needles, vines or brush smaller than three inches in diameter.
OUTDOOR FURNACE
Any equipment, device or apparatus, or any part thereof, which is installed, affixed or situated outdoors for the primary purpose of combustion of fuel to produce heat or energy used as a component of a heating system providing heat for any interior space.
UNTREATED LUMBER
Dry wood which has been milled and dried but which has not been treated or combined with any petroleum product, chemical, preservative, glue, adhesive, stain, paint or other substance.
VIOLATOR or ANY PERSON WHO VIOLATES ANY PROVISION OF THIS CHAPTER
Any person who owns the property at the time the outdoor furnace has been installed and/or operated or occupies the property and utilizes such outdoor furnace.
The construction, installation and establishment of outdoor furnaces are hereby prohibited within the Town of Fishkill. No person shall install, construct or establish an outdoor furnace. Except as authorized pursuant to §§ 75-8 and 75-9 of this chapter, no outdoor furnace shall be operated within the Town.
Any officer of the Town of Fishkill Building Department, or any other person who may hereafter be designated by resolution of the Town Board, is hereby authorized in the name and on behalf of the Town to undertake and prosecute any proceedings necessary or appropriate to enforce compliance with this chapter.
Any person who shall violate any provision of this chapter shall be guilty of a violation as defined in Article 10 of the New York State Penal Law and shall, upon conviction, be subject to a fine of not more than $250 or to imprisonment for not more than 15 days, or both such fine and imprisonment, for the first offense. Any subsequent offense within a period of three years shall be punishable by a fine of not more than $500 or imprisonment for a period of not more than 30 days, or both. Each week's violation shall constitute a separate and distinct offense.
A. 
Compliance with this chapter may be compelled and violations restrained by order or by injunction of a court of competent jurisdiction.
B. 
Any person who violates any provision of this chapter shall also be subject to a civil penalty of not less than $250 for the first violation and not less than $500 for each subsequent violation, to be recovered by the Town in a civil action. Each week's continued violation shall be for this purpose a separate and distinct violation for which civil penalties may be imposed. In the event the penalty sought is within the monetary jurisdiction of the Town Justice Court, as established in Article 18 of the Uniform Justice Court Act, such action to recover such penalty may, as determined by the attorney representing the Town, be commenced as a small claim pursuant to the provisions of Article 18 of the Uniform Justice Court Act. In the event the Town takes legal action to enforce this chapter, the violator may be responsible for any and all necessary costs relative thereto, including attorneys' fees.
A. 
Except as hereinafter provided, the lawful use of any outdoor furnace existing and duly issued a permit at the time of the adoption of this chapter may be continued only as provided in this chapter.
B. 
All existing outdoor furnaces must be in strict compliance with the manufacturer's specifications pertaining to installation, operation and maintenance. In the event of a conflict, the regulations promulgated hereunder shall apply, unless the manufacturer's instructions are stricter than the regulations promulgated hereunder, in which case the manufacturer's instructions shall apply. In addition, all owners shall apply for and receive a permit within 60 days of the effective date of this chapter.
C. 
A no-burn period for existing furnaces shall be in place from May 1 through October 1.
D. 
Fuel shall only be a natural untreated wood or fuels specifically permitted by the manufacturer. Notwithstanding the foregoing, the following fuels are strictly prohibited:
(1) 
Processed wood products and other nonwood products.
(2) 
Kerosene.
(3) 
Garbage.
(4) 
Painted wood and/or treated wood.
(5) 
Any other item not specifically allowed by the manufacturer or this provision.
E. 
The stack or chimney height on all existing outdoor furnaces shall be a minimum of two feet higher than the peak of the residence, a minimum of 20 feet above the ground, and 15 feet above the outdoor furnace.
F. 
All existing outdoor furnaces must be equipped with a properly functioning spark arrestor.
G. 
No outdoor furnace existing at the time of the adoption of this chapter shall thereafter be extended or replaced, except to meet the chimney height requirement.
H. 
Any existing outdoor furnace which is unused, abandoned or discontinued for a period of six months or more shall not be permitted to be reestablished as a nonconforming use and must be immediately removed by the property owner from the subject premises.
(1) 
If the property owner or occupier fails to remove the outdoor furnace by the end of said six-consecutive-month period, the Town of Fishkill Building Inspector or his designee shall give written notice by certified mail or personal service to the owner or occupier of the property or by affixing a copy of said notice to the front or main door of said property upon which the outdoor furnace is located. Such notice shall provide that said owner or occupier shall remove the outdoor furnace within 15 days of the date the notice is either postmarked or personally served upon the owner or occupier or posted on the property as provided above.
(2) 
Should the outdoor furnace not be removed within the time specified, the Building Inspector or his designee shall take reasonable steps to effect its removal.
(3) 
The costs incurred by the Town to effect such removal (including any attorneys' fees incurred by the Town to effect the removal) shall be charged to the owner of said premises. Said expense shall be paid by the owner of the property so affected within 30 days from the date said costs are presented to the owner. A failure to pay such costs shall be subject to the civil proceedings set forth in § 75-7 above.
I. 
No existing outdoor furnace which has been damaged by any reason to the extent of more than 75% of its assessed value for Town of Fishkill tax purposes shall be repaired or rebuilt.
A. 
Termination of existing outdoor furnaces. The Town recognizes that owners of existing outdoor furnaces have made financial expenditures in the purchase and installation of such furnaces. Therefore, such owners shall be permitted to continue to utilize said furnaces (subject to the limitations set forth in § 75-8) for a period of three years following the effective date of this chapter. Upon expiration of said three-year period, use of all such furnaces must cease.
B. 
Notice of termination.
(1) 
Following the effective date of this chapter, the Building Inspector shall serve a notice of termination upon the owners of all existing outdoor furnaces, notifying them that the operation of those shall terminate on the date specified in the notice. The notice shall further state that the owner may, within the time period set forth in Subsection C below, file an application with the Zoning Board of Appeals for an extension of the termination date.
(2) 
If no such application is filed within the time set forth herein, it shall be presumptive proof that the termination date set forth in said notice is reasonable and that the nonconforming aspect of the use has been fully amortized, and the use shall terminate on the date specified in the notice.
(3) 
The notice of termination shall be sent by certified mail, return receipt requested, to the owner of the real property at the address set forth on the most recent tax rolls of the Town.
(4) 
In the event that the certified letter is not accepted by the owner, the posting of a copy of the notice on the property and the mailing of a copy by regular mail to the owner's address shall be deemed sufficient notice.
C. 
Board of Appeals jurisdiction. The Board of Appeals of the Town of Fishkill shall have the power to hear and decide applications submitted to the Board for the continuation of a nonconforming outdoor furnace use made pursuant to this subsection. The Board shall hear and decide such applications using the same procedures by which it hears applications for use and area variances pursuant to New York State Town Law § 267-a and subject to the same time constraints for rendering a decision. Submissions of such applications to the Board shall be subject to payment of the same fees and costs as are required by the Town of Fishkill from time to time for zoning variance applications. The applicant shall not be required to obtain an order, requirement, decision, interpretation or determination by an administrative official of the Town in order to submit an application for continuation.
D. 
Amortization of certain nonconforming outdoor furnaces. Notwithstanding Subsection A, the Zoning Board of Appeals may permit an outdoor furnace subject to termination to continue for a limited period of time, not to exceed one year, beyond the three-year period established in Subsection A, provided that:
(1) 
An application is made by the owner of such outdoor furnace to the Board at least 120 days prior to the date on which such use must terminate;
(2) 
The Board shall find, in connection with such outdoor furnace, that:
(a) 
The owner of such furnace had made, prior to the nonconformity, substantial financial expenditures related to such furnace;
(b) 
The owner has not recovered substantially all of such financial expenditures;
(c) 
The period for which such furnace may be permitted to continue to be used is the minimum period sufficient for the owner of such furnace to recover substantially all of such financial expenditures; and
(d) 
Without such continuation, the owner will not have a reasonable opportunity to recover substantially all of such financial expenditures; and
(3) 
In any application for a continuation beyond the three-year period established in Subsection A, the owner shall bear the burden of proving by substantial evidence each item set forth in Subsection D(2) via competent expert and/or scientific testimony supported by reliable documentary proof.
The provisions of this chapter shall not apply to outdoor furnaces necessary to farm operations within agricultural (taxing) districts to the extent the provisions unreasonably restrict farm operations.
A. 
A permit issued pursuant to this chapter may be suspended, as the Building Inspector may determine to be necessary, to protect the public health, safety and welfare of the residents of the Town of Fishkill if any of the following conditions occur:
(1) 
Emissions from the outdoor furnace exhibit greater than 20% opacity (six-minute average), except for one continuous six-minute period per hour of not more than 27% opacity, which shall be determined as provided in 6 NYCRR 227-1.3(b);
(2) 
Malodorous air contaminants from the outdoor furnace are detectable outside the property of the person on whose land the outdoor furnace is located;
(3) 
The emissions from the outdoor furnace interfere with the reasonable enjoyment of life or property;
(4) 
The emissions from the outdoor furnace cause damage to vegetation or property; or
(5) 
The emissions from the outdoor furnace are or may be harmful to human or animal health.
B. 
A suspended permit may be reinstated once the condition which resulted in suspension is remedied and reasonable assurances are given that such condition will not recur. Recurrence of a condition which has previously resulted in suspension of a permit shall be considered a violation of this chapter subject to the penalties provided in § 75-6 hereof.
Nothing contained herein shall authorize or allow burning which is prohibited by codes, laws, rules or regulations promulgated by the United States Environmental Protection Agency, New York State Department of Environmental Conservation, or any other federal, state, regional or local agency. Outdoor furnaces, and any electrical, plumbing or other apparatus or device used in connection with an outdoor furnace, shall be installed, operated and maintained in conformity with the manufacturer's specifications and any and all local, state and federal codes, laws, rules and regulations. In case of a conflict between any provision of this chapter and any applicable federal, state or local ordinances, codes, laws, rules or regulations, the more restrictive or stringent provision or requirement shall prevail.