[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:
Trunks and branches of trees and bushes, but does not include
leaves, needles, vines or brush smaller than three inches in diameter.
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.
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.
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:
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
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.
