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Vilardi Subd. PAGGI,MARTIN&DEL BENE LLP Consulting Engineers & Land Surveyors 56 Main Street Poughkeepsie,New York 12601 845-471-7898 845-471-0905(FAX) April 21, 2006 RECEIVED Planning Board Chairman APR l ���� Town of Wappinger 20 Middlebush Road Wappingers Falls, New York 12590 TOWN CLERK Attention: Phil DiNonno Reference: Vilardi Project Dear Phil: received a call from Scott Olson, Attorney for Verizon for the job at Dr. Vilardi's. He asked me the status of this project. I told him that George Kolb and I had made a field inspection of the site on April 18th, 2006, 1 informed Dr. Vilardi at that point in time that: • Thesite monitor (professional that will be assisting Dr. Vilardi and drafting the monitoring reports) will need to make a site inspection and advise Dr. Vilardi and the Town in writing of the deficiencies to the approved Site Pian, Stormwater Pollution Plan, and Wetland Permit. • At that point, Dr. Vilardi's contractor will complete the work necessary to bring these deficiencies up to and in compliance with the appropriate documents. The Site Monitor will make an inspection and insure that each item has been brought up to specifications. • The Site Monitor will draft a letter to Dr. Vilardi and the Town stating the above. • The "Stop Work" order will be lifted and the Contractor will be able to continue doing work. These were the items given to Dr. Vilardi at the site inspection and this is what Scott Olsen was advised of in our telephone conversation. If you have any questions on the above; please do not hesitate to contact this office. Very, ruly yours, oseph . Paggi, Jr., P, . JEP:Iaw cc: Albert P. Roberts, Esq. George Kolb Hon. Joseph Ruggiero Town Board: File Marco Caviglia, Esq. Scott Olson, Esq. Joseph E.Paggi,Jr.,P.E. Ernst Martin,Jr_,PE.,L.S_ Charles R.Del Bene,Jr.,P.E. I STATE OF NEW YORK DEPARTMENT OF AGRICULTURE AND MARKETS 10B Airline Drive Albany, New York 12235 Division of Agricultural Protection and Development Services 518-457-7076 Fax 598.457-2716 September 13, 2004 Dr. Mario Vilardi 887 Main Street Fishkill, NY 12824 Dear Mr. Vilardi: From information received, it appears that you intend to construct a training track and associated stables for the boarding, training and raising of thoroughbred horses. In addition, you have indicated that the land in question is located within Dutchess County Agricultural District No. 22, a county adopted, State certified, agricultural district. The Department has consistently viewed the raising, breeding, boarding and sale of horses as a "farm operation." Riding and training activities which are directly related to and incidental to the boarding and raising of horses are also considered by the Department to be part of the "production, preparation and marketing" of such livestock. On October 31, 2001 the Governor signed into law a bill that added "commercial horse boarding operations" to the definition of farm operation. Under AML §301, subd. 11, "farm operation" now means "...the land and on-farm buildings, equipment, manure processing and handling facilities, and practices which contribute to the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise, including a `commercial horse boarding operation' as defined in subdivision thirteen of this section." AML §301, subd. 13 defines the term commercial horse boarding operation" as "...an agricultural enterprise, consisting of at least ten acres and boarding at least ten horses, regardless of ownership, that receives ten thousand dollars or more in gross receipts annually from fees generated either through the boarding of horses or through the production for sale of crops, livestock, and livestock products, or through both such boarding and such production..." In addition, start-up agricultural activities are considered a farm operation" as previously defined. In prior cases, the Department has generally stated that a start-up farm should be able to produce $10,000 in gross receipts annually within a five year period. You stated that the Town of Wappinger has indicated that your proposed activity is commercial and not agricultural. In addition, the Town has stated that you must submit to full site plan review. As previously indicated, the Department would consider the activity proposed to be an agricultural activity and not commercial in the sense of zoning. Dr. Mario Vilardi (cant.) Page 2 In general, the construction of on-farm buildings and the use of land for agricultural purposes should not be subject to site plan review, special use permits or non-conforming use requirements when conducted in a county adopted, State certified agricultural district. The purpose of an agricultural district is to encourage the development and improvement of agricultural land and the use of agricultural land for the production of food and other agricultural products as recognized by the New York State Constitution, Article XIV, Section 4. Therefore, generally, agricultural uses and the construction of on-farm buildings as part of a farm operation should be allowed uses when the farm operation is located within an agricultural district. The application of site plan and special permit requirements to farm operations can have significant adverse impacts on such operations. Site plan and special permit review, depending upon the specific requirements in a local law, can be expensive due to the need to retain professional assistance to certify plans or simply to prepare the type of detailed plans required by the law. The lengthy approval process in some local laws can be burdensome, especially considering a farm's need to undertake management and production practices in a timely and efficient manner. Site plan and special permit fees can be especially costly for start-up farm operations. Generally, farmers should exhaust their local administrative remedies and seek, for example, permits, exemptions available under local law or area variances before the Department reviews the administration of a local law. However, an administrative requirement/process may, itself, be unreasonably restrictive. The Department evaluates the reasonableness of the specific requirement/process, as well as the substantive requirements imposed on the farm operation. The Department has found local laws which regulate the health and safety aspects of the construction of farm buildings through provisions to meet local building codes or the State Building Code (unless exempt from the State Building Code) and Health Department requirements not to be unreasonably restrictive. Requirements for local building permits and certificates of occupancy to ensure that health and safety requirements are met are also generally not unreasonably restrictive. I have attached several guidance documents that may be useful. The "Zoning" guideline contains an abbreviated site plan review procedure that the Department has found, under the AML, not to be unreasonably restrictive. In addition, the guidance document on "commercial horse boarding operations" is also attached. If you would like to request a review of the Town of Wappingers local law or the application of the same to your proposed start-up farm operation, please complete the attached form and send the form, along with a copy of the Town Code, to my office. if you need any further information, please contact me. Sincerely, Ro a orders, Ph.D. Chief, Agricultural Protection Unit a response to such inquiries. Similarly, a farmer or other Local Laws and affected party in a district may seek the Department's opinion on a proposed or existing law or ordinance Agricultural Districts: without filing a complaint. Farmers How Do They Relate? A request for review must be provided in writing and include at least the following information: Counties, towns and villages in New York State •the location of the farm operation and identification have broad powers to enact laws to govern their own of the agricultural district in which it is situated; affairs. However, State laws impose certain restrictions +a description of the affected farm operation (e.g. on local government authority. One such restriction is size of farm,type of enterprise,years in operation); found in Section 305-a of the Agriculture and Markets •a description of the specific farm buildings, equip- Law which contains the following mandate: ment or practices involved and how they are of "Local governments, when exercising their powers fected; to enact and administer comprehensive plans and .a copy of the complete local law or ordinance and local laws, ordinances, rules or regulations, shall identification of the specific section or sections in- exercise these powers in such manner as may realize volved; the policy and goals set forth in this article [Article .a listing of involved parties who can be contacted 25 AA of the Agriculture and Markets Law], and for further information (including addresses and shall not unreasonably restrict or regulate farm op- phone numbers). erations within agricultural districts in contraven- tion of the purposes of this article unless it can be Subsequent to receiving a request for review of a local law or ordinance, the Department will contact the shown that the public health or safety is threat- municipality municipality involved and provide them with an oppor- tunity to respond. This brochure has been prepared by the New York Municipalities State Department of Agriculture and Markets to assist A request for review must be provided in writing and municipalities in drafting and administering local laws q include at least the following information: and ordinances which may affect farming in an agricul- tural district. It should not be substituted for legal ad- +the identification of the agricultural district(s) af- vice from a municipality's attorney. The brochure also fected; offers guidance to farmers and municipalities on the ap- +a description of the specific law or proposed law plication of Section 305-a. and how farm buildings, equipment or practices are The Commissioner of Agriculture and Markets may or maybe affected independently initiate a review of a proposed or existing +a copy of the complete local law or ordinance and local law or ordinance or proceed upon the request of a identification of the specific section or sections in- farmer or municipality in an agricultural district. The volved; following describes the procedure for requesting review, •a listing of involved parties who can be contacted how the local requirements are analyzed, and remedi- for further information (including addresses and ated, if necessary. phone numbers). PROCEDURE ANALYSIS Questions concerning the impact of local laws and The Department examines several factors m evaluat- ordinances on farm operations are solved far more easily ing whether a local law or ordinance is in compliance at the drafting stage than after the provision is in place. with Section 305-a. Tests that must be met in each case Municipalities are,therefore, encouraged to contact the are as follows: Department, either by phone or in writing,in advance of farm located within an agricultural p + e affected may restrict farmin Is th enacting a law or ordinance whichy g district? in an agricultural district. The Department will provide Section 305-a only applies to farm operations in an George E.Pa#aki Nathan L.Rodgers agricultural district. Governor Commissioner 9116103 •Does the regulated activity encompass farm opera- the regulated activity. soy. , it could withstand the lirni- tions? tations of Section 305-a. Section 30 1(11) of the Agriculture and Markets Law REMEDIES defines"Farm Operation" as meaning "...the land and If the Department determines that a local law or or- on-farm buildings, equipment, manure processing and dinance unreasonably restricts or regulates farm opera- handling facilities, and practices which contribute to tions in an agricultural district, it will notify the in- the production, preparation and marketing of crops, volved municipality to that effect and attempt to arrive livestock and livestock products as a commercial en- at a mutually satisfactory resolution. In the case where a terprise, including a 'commercial horse boarding op- municipality rejects the Department's attempts at remc- eration' as defined in subdivision thirteen of this sec- diation, the Commissioner of Agriculture and Markets is tion. Such farm operation may consist of one or more explicitly authorized by law to bring an action to enforce parcels of owned or rented land, which parcels may be Section 305-a. Alternatively, the Commissioner may contiguous or noncontiguous to each other." The issue an Order to comply, pursuant to Section 36 of the definition of"crops, livestock and livestock products" Agriculture and Markets Law. is found in Section 301(2). Only farm operations are protected by Section 305-a. The Department draws on the expertise of its program and legal staff, and other resources as needed,to make FRequestsfor general information or these determinations. nd formal written complaints alleging violations of Section 305-a, should be directed to: •Does the local law or ordinance unreasonably re- Agricultural Districts Program Administrator strict or regulate? New York State Department of Agriculture The evaluation of reasonableness consists of two and Markets parts: 1)whether the law or ordinance is unreasonably I Winners Circle restrictive "on its face," and 2) whether it is unrea- Albany,NY 12235 sonably restrictive as applied to a particular situation. Phone: (518)457-2713 Some laws or ordinances are so vague that they inhibit fanners from undertaking certain activities or con- structing certain buildings out of concern for violating the law or ordinance. In this case, it is possible that the law or ordinance, because of its vague construc- tion, could be construed as unreasonably restricting a farm operation. An ordinance may also appear reasonable in the ab- stract,but may unreasonably restrict or regulate a par- ticular farmer. For example, many zoning ordinances impose setback requirements for structures in the in- terest of public safety or even aesthetics. These set- backs may be entirely reasonable under usual condi- tions, but may be construed as being unreasonably re- strictive if applied to a farmer who, for example, con- structs a building on a dead-end street, shielded from view,and near the only available water source. A reasonable exercise of authority in one locality may translate into an unduly burdensome restriction on farming in another. in sum, reasonableness depends on the totality of circumstances in each case. •Is the public health or safety threatened by the regulated activity? Even if the Department determines that a particular law or ordinance is unreasonably restrictive,it must also ask whether the pu c earth or safty i-s threaten�y 91'16103 Local Laws and Agricultural Districts: Guidance for Local Governments and Farmers Article XIV, Section 4 of the New York State Constitution, added in 1970, provides that the policy of the State shall be to encourage the development and improvement of its agricultural lands-for the production of food and other agricultural products and states that the legislature, in implementing this policy, shall include adequate provision for the protection of agricultural lands. Shortly thereafter, in 1971, the Agricultural Districts Law, Agriculture and Markets Law (AML) Article 25-AA, was enacted implementing that policy. Section 305-a of Article 25-AA contains the following mandate: "Local governments, when exercising their powers to enact and administer comprehensive plans and local laws, ordinances, rules or regulations, shall exercise these powers in such manner as may realize the policy and goals set forth in this article [Article 25 AA of the Agriculture and Markets Law], and shall not unreasonably restrict or regulate farm operations within agricultural districts in contravention of the purposes of this article unless it can be shown that the public health or safety is threatened." For purposes of AML §305-a, subd. 1, "Farm operation" means: "...the land and on- farm buildings, equipment, manure processing and handling facilities, and practices which contribute to the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise, including a 'commercial horse boarding operation' as defined in subdivision thirteen of this section. Such farm operafion may consist of one or more parcels of owned or rented land, which parcels may be contiguous or noncontiguous to each other." The definition of "crops, livestock and livestock products" is contained in AML §301(2). The brochure Local Laws and Agricultural Districts: How Do They Relate? was prepared by the Department to assist municipalities in drafting and administering local laws and ordinances which may affect farming in an agricultural district_ The brochure also offers guidance to farmers on the application of AML §305-a. Local governments and farmers are encouraged to review that document for information on the procedure for requesting Department assistance as well as general discussion of the law. The following guidelines provide more details on the application of AML §305-a to several common agricultural topics. However, they should not be substituted for legal advice from a municipality's attorney. The Department hopes that this information will assist local governments and farmers in resolving issues that may impact farm operations within their communities.' GENERAL INFORMATION In examining whether a local law is unreasonably restrictive, the Department of Agriculture and Markets considers several factors, including, but not limited to: whether the requirements adversely affect the farm operator's ability to manage the farm operation effecfively and efficiently; whether the requirements restrict production options which could affect the economic viability of the farm; whether the requirements will cause a lengthy delay in the construction of a farm building or implementation of a practice; the cost of compliance for the farm operation affected; and the availability of less onerous means to achieve the locality's objective. The Local laws and their administration are reviewed on a case-by-case basis. These guidance documents are intended to inform local governments and farmers generally of how the Department interprets and applies ANM§305-a. The facts and circumstances of each particular matter are addressed uniformly and in accordance with applicable statutary requirements. 3/23104 Department also takes into account any relevant standards established under State law and regulations. Where local standards have exceeded the State standards, the Department has, in many instances, found the local laws to be unreasonably restrictive. Each law, however, is examined on its own merits. If a local government believes that local conditions warrant standards that differ from the State's, the Department considers those conditions in evaluating whether the local standards are unreasonably restrictive. The Department recognizes and encourages the efforts of some local governments to comply with AML §305-a by providing a Right to Farm exemption, for example, stating that "[n]othing contained herein shall be deemed to limit the right to farm as set forth in Article 25-AA of the NYS Agriculture& Markets Law...." Such local laws often further provide that no "sound agricultural practice" as defined in Article 25-AA shall be deemed prohibited under the ordinance or subject to its permit requirements. This provision could be problematic for both the local government and farm operations. AML §308 (New York's Right to Farm law) does not define "sound agricultural practices." The Department does not make prospective judgments on agricultural practices and has not defined what constitutes a sound agricultural practice. Section 308 requires that agricultural practices be evaluated on a case-by-case basis. Department staff review each practice, for which an opinion is requested, on its own merit and a Commissioner's Opinion only examines the condition and management of the practice in effect at the time of the review. Further, the absence of an opinion from the Commissioner does not mean that a particular practice is unsound. Under the procedures followed by the Department in conducting sound agricultural practice reviews, generally staff consult the landowner, neighbors, State and local agencies, pertinent literature and experts in the particular field of interest. The landowner whose practice is under review generally needs to be a willing participant for the Department to fully evaluate a practice and reach a valid conclusion as to its soundness. Information regarding management of the practice and grant of access to the farm premises is usually needed from the farmer. The review process is time consuming and generally takes from six to twelve months before an opinion is issued. To require a farmer to obtain an opinion to avoid prosecution or permitting under the local law would be unduly burdensome and, generally, unreasonably restrictive. AVAILABLE GUIDANCE DOCUMENTS 1. Application to Request a Review Pursuant to Section 305-a of the AML 2. Brochure entitled Local Laws and Agricultural Districts: How Do They Relate? 3. Guideline for Review of Local Laws Affecting Farm Worker Housing 4. Guideline for Review of Local Laws Affecting Nutrient Management Practices (i.e. Land Application of Animal Waste, Recognizable and Non-recognizable Food Waste, Sewage Sludge and Septage; Animal Waste Storage/Management) 5. Guideline for Review of Local Laws Affecting On-Farm Open Burning 6. Guideline for Review of Local Laws Affecting the Control of Farm Animals 7. Guideline for Review of Local Laws Affecting Farm Operations' Use of Wetlands 8. Guideline for Review of Local Laws Affecting Direct Farm Marketing Activities 9. Guideline for Review of Local Laws Affecting On-Farm Composting Facilities 10. Guideline for Review of Local Laws Affecting Temporary Greenhouses 11. Guideline for Review of Local Zoning and Planning Laws 12. Guideline for Review of Local Laws Affecting Commercial Horse Boarding Operations 13: Guideline for Review of Local Laws Affecting Junk and Junkyards 3123104 Guidelines for Review of Local Laws Affecting Commercial Horse Boarding Operations In 2001 the Agriculture and Markets Law (AML) was amended to include commercial horse boarding operations in the definition of a "farm operation" under AML §301, subdivision 11. This amendment recognized that commercial horse boarding operations are farm operations and as such should receive AML §305-a protection from unreasonably restrictive local laws. (Previously, commercial horse boarding operations were only eligible for agricultural assessments.) Under AML §301, subd. 11, "farm operation" means "...the land and on-farm buildings, equipment, manure processing and handling facilities, and practices which contribute to the production, preparation, and marketing of crops, livestock, and livestock products as a commercial enterprise, including a 'commercial horse boarding operation' as defined in subdivision thirteen of this section. Such farm operation may consist of one or more parcels of owned or rented land, which dparcels may efines contiguous or noncontiguous, to each other." AML §30'1, subd. 13efines the term "commercial horse boarding operation" as "...an agricultural enterprise, consisting of at least seven acres and boarding at least ten horses, regardless of ownership, that receives ten thousand dollars or more in gross receipts annually from fees generated either through the boarding of horses or through the production for sale of crops, livestock, and livestock products, or through both such boarding and such production. Under no circumstances steall this subdivision be construed to include operations whose primary on site function is horse racing." The Department has consistentlyviewed the raising, breeding, boarding and sale of sion 11. A se horses as a "farm operation" under AML §301,services and training to anirmals keption operation provides care, housing, health related se 9 the premises or on other properties owned or leased by the farm operator. Riding and training activities that are directly related to and incidental to the boarding and raising of ons who own or have a long-term lease from the horses, including riding lessons for pers farm owner for the horse that is boarded for tactivities, are he either boarded at or owned by the part of the farm operation. Horse showsorsfarm and used for l farm operation, which are not open to the general public, are also part of the farm operation. The Department does not consider a riding academy to be an agricultural activity under the AML A riding academy generally offers riding lessons to the public and to individuals that do not own or have a long-term lease for the horse that is boarded and used at the facility for such riding. Local zoning laws which include definitions and.provisions for riding academies or commercial horse boarding operations should include language which distinguishes between the types of operations. In general, the construction of on-farm buildings and the use of land for agricultural purposes should not require site pian review, special use permits or be subjected to non-conforming use requirements when located in a county adopted, State certified of an agricultural district is to encourage the agricultural district. The purpose development and improvement of agricultural land and the use of agricultural land for 6124144 ..... ............... .. .. .. . . the production of food and other agricultural products is recognized by the New York State Constitution, Article XIV, Section 4. Therefore, generally, agricultural uses and the construction of on-farm buildings as part of a farm operation should be permitted uses when the farm operation is located within an agricultural district. The application of site plan and special permit requirements to farm operations can have significant adverse impacts on such operations. Site plan and special permit review, depending upon the specific requirements in a local law, can be expensive due to the need to retain professional assistance to certify plans or simply to prepare the type of detailed plans required by the law. The lengthy approval process in some local laws can be burdensome, especially considering a farm's need to undertake management and production practices in a timely and efficient manner. Site plan and special permit fees can be especially costly for start-up farm operations. Therefore, absent any showing of an overriding local concern, generally, an exemption from site plan and special use permit requirements should be provided to farm operations located within an agricultural district. However, as discussed in more detail in the Department's Guidelines for Review of Local Zoning and Planning Laws, the Department recognizes the desire of some local governments to have an opportunity to review agricultural development and projects within their borders. Therefore, the Department developed a model streamlined site plan review process which attempts to respond to farmers' concerns while ensuring that local issues are examined. Generally, farmers should exhaust their local administrative remedies and seek, for example, certain permits, exemptions available under local law or area variances before the Department reviews the administration of a local law. However, an administrative requirement/process may, itself, be unreasonably restrictive. The Department evaluates the reasonableness of the specific requirement/process, as well as the substantive requirements imposed on the farm operation. The Department has found local laws which regulate the health and safety aspects of the construction of farm buildings through provisions to meet focal building codes or the State Uniform Fire Prevention and Building Code ("Uniform Code") [unless exempt from the Uniform Code under Building Code §101.2(2) and Fire Code §102.1(5)] and Health Department requirements for potable water and sewage disposal not to be unreasonably restrictive. Requirements for local building permits and certificates of occupancy to ensure that health and safety requirements are met are also generally not unreasonably restrictive. The following are some specific matters that the Department considers when reviewing a local law that affects commercial horse boarding operations: A. Minimum Lot Size The AML states that a commercial horse boarding operation must be at least seven acres in size. A Town's limitation on the number of horses allowed per acre could be unreasonably restrictive. The Department considers, among other things, the impacts Please see Guidelines for Review of Local Zoning and Planning Laws for further general discussion of each of these issues. $124104 on a particular farm operation to determine if a density limitation is unreasonably restrictive. if pasture is to be used for sustenance, then one acre of pasture per horse is usually appropriate. If the area is to be used for a turn-out area, then five or more head may be carried on one acre of land. Most commercial horse boarding operations are closed systems where they are conducted on smaller acreage, feed is brought in and manure is exported off the farm. Horses are exercised in various arenas, indoor and outdoor, and rotated in small rectangular fenced areas (paddocks). B. Setbacks Minimum setbacks from front, back and side yards for farm buildings have not been viewed as unreasonable unless a setback distance is unusually long. Setbacks that coincide with those required for other similar structures have, in general, been viewed as reasonable. A farm operation's barns, storage buildings and other facilities may already be located within a required setback, or the farm operation may need to locate new facilities within the setback to meet the farm operation's needs. Also, adjoining land may consist of vacant land, woodland or farmland. The establishment of unreasonable setback distances increases the cost of doing business for farmers because the infrastructure needed to support the operation (e.g., water supply, utilities and farm roads) is often already located within, and adjacent to, the farmstead area or existing farm structures. Setbacks can also increase the cost of, or make it impracticable to construct new structures for the farm operation. Requiring setbacks from property lines for riding trails may be unreasonably restrictive. If riding trails are located in or adjacent to fields that are used for the production of hay or other field crops, a minimum setback from a property line would take land out of production. In such instances, the trail would generally be located closer to the property line to reduce the amount of land taken out of production and reduce the amount of operating costs and time necessary to maintain a swath of unusable land established by a setback. C. Screening Some local laws require a landowner to screen an agricultural activity from adjacent non-agricultural uses. The Department has previously determined that a requirement to screen agricultural activities from adjoining non-agricultural uses is unreasonably restrictive. While aesthetics are an appropriate and important consideration under zoning and planning laws, the purpose of the Agricultural Districts Law is to conserve and protect agricultural lands by promoting the retention of farmland in active agricultural use. Screening requirementssuggest ages that don agricultural t abe sceeened s are objectionable or different from other forms of land Fanners should not be required to bear the extra costs to provide screening unless it is required to address a threat to the public health or safety. 6124104 D. Event Permits Local laws that require a special permit to hold public events, shows, rodeos, competitive events, etc. are, in general, not unreasonably restrictive when the event involves the general public and not just those individuals who board their horses on the farm. If the event is limited to those individuals who board their horses on the farm, a special permit should not be required. E. Sign Limitations The administration of local law provisions which regulate signs may unreasonably restrict a commercial horse boarding farm operation. Such farm operations may need to use signs to advertise the name of the farm and the services it offers. Paddocks and barns may not be visible from the road and therefore the farm may need to use an adequately sized on-premises sign or locate a sign(s) at off-premises locations. Whether or not a limitation on the size andlor number of signs that may be used to advertise a commercial horse boarding operation is unreasonably restrictive depends primarily on the location of the operation. An operation located on a principally traveled road probably will not need as many signs as one which is located on a less traveled road and may need directional signs to direct the public to the premises. F. Farm Worker Housing Farm worker housing, including mobile homes (also known as "manufactured homes"), is an integral part of numerous farm operations. Farmers often provide on- farm housing for their farm laborers to, among other things, accommodate the long workday, meet seasonal housing needs and address the shortage of nearby rental housing in rural areas. Generally, in evaluating the use of farm labor housing under §305-a, the Department considers whether the housing is used for seasonal and/or full- time employees and their families; is provided by the farm operator (irrespective of whether the operator owns or rents the farm for the production of agricultural products); and whether the employee to be housed is engaged in the production function(s) of the farm operation and is not a partner or owner of the farm operation. The Department does not consider the primary residence of the owner or partner of the farm operation to be protected under §305-a. For further discussion see the Department's Guidelines for Review of Local Laws Affecting Farm Worker Housing. G. Noise Some local laws have established maximum permitted sound pressure levels. For example, one local law prohibited noise from exceeding a maximum decibel level, which was reduced by six decibels for lots within two hundred feet of a residence district. Such noise provisions may unreasonably restrict farm operations within an agricultural district. According to an article written by David E. Baker entitled Noise: The Invisible Hazard (University Extension, University of Missouri-Columbia, published October 1993), a chain saw has a decibel level of 120 and tractors, farm equipment and power 6124104 saws have a decibel level of 900. Inside an acoustically insulated tractor cab, the decibel level is 85. This type of equipment is commonly used along and/or near property boundaries and may exceed maximum decibel levels allowed by a local law. H. Smoke, Dust Local laws may regulate smoke and other particulate matter. Such laws often prohibit measurable emission of dust or other particulate matter. These provisions may unreasonably restrict farm operations. Some measure of dust usually occurs with the tillage of land and may not subside until the area is populated with crops. Furthermore, horse operations may, from time to time, have bare spots within fields that could be a cause for airborne particulate matter and dust. Horses and other livestock may roll or dig up the turf. Dust may also occasionally come from paths used by livestock and from riding rings. Particulate matter may also become airborne from mowing and other field maintenance activities. Further, the regular operations of a farm typically involve the removal of trees and brush during field clearing and maintenance; the removal or trimming of diseased fruit canes, vines, and trees; and the removal of vegetative material from cultivated wetlands, among other things. These materials are often disposed of on the farm by open burning. On-farm open burning is considered by the Department to be a practice that is part of a "farm operation" and thus protected from unreasonable local restriction. Open burning is regulated by the Department of Environmental Conservation (DEC). Local laws should allow opendiscussionburg consistent with the DEC's regulations and/or guidance. For ee the Department's Guidelines for Review of Local Laws Affecting On-Farm Open Burning. I. Nutrient Management Nutrient Management Practices are an essential component of any farm operation and are protected under AML §305-a from unreasonable local restrictions. Traditionally, farm operators use animal waste as a main source of nutrients for crop production. Many commercial horse boarding operations may not have enough land for crop _production or may have excess horse manure. Generally, manure from commercial horse boarding operations is either composted and spread on fields or stored and removed off-site. In general, the Department believes that any local waste management laws should provide exemptions to allow the land application, storage, and/or composting of animal waste, for agricultural purposes on farm operations within a county adopted, State certified agricultural district. The DEC regulates most types of solid wastes pursuant to 5 NYCRR Part 380, but exempts animal waste from this regulation. The Department considers the standards and permitting requirements under the DEC's regulations in evaluating whether restrictions on agricultural land use and nutrient management practices are unreasonably Guldelintese in for violation fLocalML 3Laws For further discussion see the Department's Affecting Nutrient Management Practices. - roducts includin manure, must be utilized or disposed Agricultural wastes and by p g Of in an environmentally safe manner. It is the Department's view that it is not 6124104 unreasonably restrictive for a local government to require that a commercial horse boarding operation submit a plan that describes how its manure will either be used or removed from the farm (e.g. by landspreading, composting, or periodic removal). Manure should not be stored and remain on the farm for a period in excess of one year. The composting of such agricultural waste is a preferred method because it is recycled and utilized as a soil amendment to enhance plant growth for both crop production and off-farm uses (e.g. landscaping, home gardens, etc.). Agriculture and Markets Law §305-a, subdivision 1 protects the on-farm composting of these materials when the composting is part of the agricultural production function of the farm, that is, the farm composts to rid the farm of its excess agricultural waste or the farm composts to create a soil amendment for crop production. For further discussion please refer to the Department's Guidelines for Review of Local Laws Affecting On-Farm Composting Facilities. J. Odor Some local laws prohibit any land use which emits any discernible odor outside the building in which the use is conducted or beyond the lot line of the property. Livestock operations emit odors associated with the animals themselves, the feed, and livestock manure. The amount of odor that can be tolerated by an individual varies and quantities discernible to one person may not be to another. The actual odor regulation and its administration would have to be examined to determine whether or not a farm is unreasonably restricted. K. Animal Control Generally, farmers are responsible for the care, safety and confinement of livestock in their charge. Farm operations must provide adequate fencing and gates to confine livestock in a safe and reasonable manner. The public needs to be protected from livestock that may cause bodily harm and/or property damage if the animals venture off the farm. Therefore, local animal control laws that require livestock to be confined and not "run at large" without restraint, confinement or supervision, are reasonable and help to protect public health and safety. Local governments should be aware that commercial horse boarding farms may need to install fences with a height greater than may be allowed under a local law (e.g., certain horses may not be adequately confined by a maximum three or four feet fence). For further discussion please refer to the Department's Guidelines for Review of Local Laws Affecting the Control of Farm Animals. 6124104 Guidelines for Review of Local Zoning and Planning Laws Background and Objective As communities adopt or amend zoning regulations, potential conflicts between farm operations and local land use controls may increase. This, coupled with continuing exurban development pressures on many of the State's agricultural communities, increases the need to better coordinate focal planning and the agricultural districts program, and to develop guidelines to help address conflicts which may occur. Proactively, guidelines can aid in crafting zoning regulations by municipalities with significant farming activities. Zoning and Farm Operations: Practical Limitations and Problems Farms are host to several discrete but interdependent land uses which may include barns, commodity sheds, farm worker housing, garages, direct farm markets, silos, manure storage facilities, milking parlors, stables, poultry houses and greenhouses, to name but a few. The typical zoning regulation, in addition to establishing minimum lot sizes and separations between uses, often prohibits more than one "principal" structure on each parcel of record. Many zoning devices, then, are unable to distinguish between on-farm structures as part of a farm operation from the same building when it is used for an independent, freestanding use. The minimum separation and "yard" requirements of zoning are designed to avoid over concentration, maintain adequate spaces for light and air, and to reduce fire hazard in more urban environments. The application of such requirements to suburban and rural communities and farm operations often results in the unintended regulation of farm operations and uses not as an integrated whole, but as separate improvements. The rapidly changing nature of the agricultural industry does not always allow zoning and the comprehensive planning process to keep pace. This can result in the application of outdated regulations to contemporary land uses and gives rise to potentially unreasonable restrictions. Local governments may run afoul of the letter and intent of the Agricultural Districts Law by limiting the type and intensity of agricultural uses in their communities and by narrowly defining "farm" or "agricultural activity." This is sometimes problematic even in municipalities with a significant base of large, "production" level farming operations. Inadequately defined terms also give rise to conflict between the zoning device and farm operations. Because of the inherent nature of zoning, there isessentially standards are to administrative authority to waive its standards, even when at variance with the community's land use policy and what may be deemed its "intent." A municipal zoning board of appeals may, consistent with specific tests 1 9116/03 found in Town, Village and City Law, vary the use and area standards of a zoning regulation, and reverse or affirm determinations of the zoning administrative official. Such a remedy: i.e., an area or use variance, may, however, in and of itself be considered "unreasonably restrictive" if it is the only means available to establish, expand or improve a "farm operation" in a county adopted, State certified agricultural district. These and other limitations and problems that can lead to AML §305-a violations may be avoided in the first instance by sound comprehensive planning. The Town Law, Village Law, General City Law and the Agricultural Districts Law are designed to encourage coordination of local planning and land use decision making with the agricultural districts program. Agricultural Districts and County Agricultural and Farmland Protection Plans: Their Influence on the Municipal Comprehensive Plan and the Zoning Process The preparation, adoption and administration of a municipal comprehensive plan and zoning regulation are not independent actions of local government, but should be part of a well thought out, seamless process. A zoning regulation is, in the final analysis, simply a device to implement the community plan and, in fact, "... must be in accordance with a comprehensive plan ..." [Town Law §272- a(11)(a)] The State Legislature has. codified the intent, definition and content of the comprehensive plan (Town Law §272-a, Village Law §7-722 and General City Law §28-a). In so doing, the Legislature has given significant status to "agricultural uses" in general, and State certified agricultural districts and county agricultural and farmland protection plans created under Agriculture and Markets Law Articles 25-AA and 25-AAA in particular. Town Law §272-a (9) requires agricultural review and coordination with the comprehensive planning process: `A town comprehensive plan and any amendments thereto, for a town containing all or part of an agricultural district or lands receiving agricultural assessments within its jurisdiction, shall continue to be subject to the provisions of article twenty-five-AA of the agriculture and markets law relating to the enactment and administration of local laws, ordinances, rules or regulations.. A newly adopted or amended town comprehensive plan shall fake into consideration applicable county agricultural and farmland protection plans as created under article twenty-five-AAA of the agriculture and markets law." (The same language is found in Village Law and General City Law.) Thus, the statutory influence the Agricultural Districts Law and the Agricultural and Farmland Protection programs have on the comprehensive planning process and zoning regulations is significant. State certified agricultural districts and 2 9116103 county agricultural and farmland protection plans are community shaping influences in much the same way as existing and proposed infrastructure; wetlands, floodplains, topographical features; cultural, historic and social amenities; economic needs; etc. are viewed.and encourage the development and ural Districts Law is a valuable planning tool to conserve, P protect a ricultural lands as valued improvement of the agricultural economy; p g natural and ecological resources; and preserve open space. In addition to AML §305-a, limitations on local authority nTown oninw §28sts a e and Village Law §7-739 were enacted to ensure thatagricultural taken into consideration during the review of specific land use proposals. Town Law §283-a (1) and Village Law §7-739(1), as recently amended by Chapter 331 of the Laws of 2002, require local governments to "...exercise their powers to enact local laws, ordinances, rules or regulations that apply to farm operations etr an agricultural district in a manner which does not unrregulate farm operations in contravention of the purposes of article twenty-five- AA of the agriculture and markets law, unless it can be shown that the public health or safety is threatened." The recent amendments make the Town and Village Law provisions consistent with AML §305-a regarding showing a threat to the public health or safety. AML §305-a, subd.1 is not a stand-alone requirement for coordination of local planning and land use decision making with the agricultural districts program. Rather, it is one that is fully integrated with the comprehensive planning, zoning and land use review process. Application of Local Laws to Farm operations within Agricultural Districts In general, the construction of on-farm buildings and the use of land for agricultural purposes should not be subject to site plan review, special use permits or non-conforming use requirements when conducted in a county adopted, State certified agricultural district. The purpose of an agricultural district is to encourage the development and improvement of agricultural land and the use of agricultural land for the production of food and other agricultural products as recognized by the New York State Constitution, Article XIV, Section 4. Therefore, generally, agricultural uses and the construction of on-farm buildings as part of a farm operation should be allowed uses when the farm operation is located within an agricultural district. Town Law §274-b, subdivision 1 allows a town board to authorize a planning board or other designated administrative body to grant special use permits as set, forth in a zoning ordinance or local law. Special use permit" is defined as "...an authorization of a particular land use which is permitted in a zoning ordinance or focal law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met." Agricultural uses in an agricultural district are not, however, "special uses." They are constitutionally lt� nias and uses which are protected by AML §305-a, subd1 Further, agrcuafritts are created _.._ 3 9116103 and reviewed locally through a process which includes public notice and hearing, much like zoning laws are adopted and amended. Therefore, absent any showing of an overriding local concern, generally, an exemption from special use permit requirements should be provided to farm operations located within an agricultural district. The application of site plan and special permit requirements to farm operations can have significant adverse impacts on such operations. Site plan and special permit review, depending upon the specific requirements in a local law, can be expensive due to the need to retain professional assistance to certify plans or simply to prepare the type of detailed plans required by the law. The lengthy approval process in some local laws can be burdensome, especially considering a farm's need to undertake management and production practices in a timely and efficient manner. Site plan and special permit fees can be especially costly for start-up farm operations. Generally, farmers should exhaust their local administrative remedies and seek, for example, permits, exemptions available under local law or area variances before the Department reviews the administration of a local law. However, an administrative requirement/process may, itself, be unreasonably restrictive. The Department evaluates the reasonableness of the specific requirement/process, as well as the substantive requirements imposed on the farm operation. The Department has found local laws which regulate the health and safety aspects ofthe des o or g provisions uction of farm buildings through to meet local building ca State Build Code (unless a empt from the State Building Code 1) and Health Department requirements not to be unreasonably restrictive. Requirements for local building permits and certificates of occupancy to ensure that health and safety requirements are met are also generally not unreasonably restrictive. Site Plan Review for Farm Operations within an Agricultural District Many local governments share the Department's view that farm operations should not have to undergo site plan eview and empt ofsome local farms from that requirement. However, the Department recognizes the desire governments to have an opportunity to review agricultural development and projects within their borders, as well as the need of farmers for an efficient, economical, and predictable ll�edesite I lanview reviewboth processinterests, which Department seto developed a model stream p respond to the farmers' concerns while ensuring the ability to have local issues examined. The process could be used for farm buildings and structures (new and significant expansions) proposed for a site, but should not be required for non-structural agricultural uses. For example, to require farm operations in an agricultural distirct to undergo site plan review to enage in the production, A discussion of the New York State Uniform Fire Prevention and Building Code follows below. 9116103 preparation and marketing of crops, livestock and livestock products, would generally be unreasonably restricitve. The authorizing statutes for requiring site plan review are quite broad and under "home rule" muncipalities retain signicant flexibility in crafting specialized procedures (e.g., the selection of a reviewing board; uses which trigger submission of site plans; whether to have a public hearing and the length of time to review an application). Town Law §274-a and Village Law §7-725-a define a site plan as "a rendering, drawing, or sketch prepared to specifications and containing necessary elements as set forth in the applicable zoning ordinance or local law which shows the arrangement, layout and design of the proposed use of a single parcel of land... ." These sections of law further outline a list of potential site plan elements including parking, means of access, screening, signs, landscaping,_ architectural features, location and dimensions of buildings, adjacent land uses and physical features meant to protect adjacent land uses as well as additional elements. Many municipalities have also added optional phases to the site plan review. While a preliminary conference, preliminary site plan review and public hearings may assist the applicant earlier in the review process and provide the public an opportunity to respond to a project, they can result in a costly delay for the farmer. For the sake of simplicity, the model site plan process and the following guidance presume that the planning board is the reviewing authority. Site Plan Process The applicant for site plan review and approval shall submit the following: 1) Sketch of the parcel on a location map (e.g., tax map) showing boundaries and dimensions of the parcel of land involved and identifying contiguous properties and any known easements or rights-of-way and roadways. Show the existing features of the site including land and water areas, water or sewer systems and the approximate location of all existing structures on or immediately adjacent to the site. 2) Show the proposed location and arrangement of buildings and uses on the site, including means of ingress and egress, parking and circulation of traffic. 3) Sketch of any proposed building, structure or sign, including exterior dimensions and elevations of front, side and rear views. Include copies of any available blueprints, plans or drawings. s 9116103 4) Provide a description of the project and a narrative of the intended use of such proposed buildings, structures or signs, including any anticipated changes in the existing topography and natural features of the parcel to accommodate the changes. Include the name and address of the applicant and any professional advisors. If the applicant is not the owner of the property, provide authorization of the owner. 5) If any new structures are going to be located adjacent to a stream or wetland provide a copy of the floodplain map and wetland map that corresponds with the boundaries of the property. 6) Application form and fee (if required). If the municipality issues a permit for the structure, the Code Enforcement Officer (CEO) determines if the structures are subject to and comply with the local building code or New York State Uniform Fire Prevention and Building Code prior to issuing the permit. Similarly, the Zoning Enforcement Officer (or the CEO in certain municipalities) would ensure compliance with applicable zoning provisions. The Department urges local governments to take into account the size and nature of the particular farm buildings and structures when setting and administering any site plan requirements for farm operations. The review process, as outlined above, should generally not require professional assistance (e.g., architects,engineers or surveyors) to complete or review and could be completed relatively quick]Y.2 The Department understands, however, that in some cases, a public hearing and/or a more detailed review of the project which may include submission of a survey, architectural or engineering drawings or plans, etc., may be necessary. The degree of regulation that may be considered unreasonably restrictive depends on the nature of the proposed activities, the size and complexity of the proposed buildings or structures and whether a State agricultural exemption applies. Time Frame for Review and Decision a site Town Law §274-a and Village a maximum§7-725-aof 62require daysthat afterdecision receiptnof the plan application be made withi application or date of a public hearing, if one is required, Town and Village Law authorize town boards and village boards of trustees to adopt public hearing requirements and local laws often provide planning boards with the discretion whether to hold a public hearing_ The Department recommends that if the municipality requires construction of farm buildings and structures within a state certified agricultural district to undergo site plan review, that the review and decision be expedited within 45 days, with no public hearing. The Department recognizes that the Town Law allows municipalities to determine which uses 2 Please see discussion of Agricultural Exemptions below. 9116103 must undergo site plan review, the time frame for review (within the 62 day maximum), and whether to conduct a public hearing. A protracted review of most agricultural projects could, however, result in significant economic impacts to farmers. The process outlined above affords the community an opportunity to examine a proposed agricultural project and to evaluate and mitigage potential impacts in light of public health, safety and welfare without unduly burdening farm operations. Of course, the "process" must also be adminstered in a manner that does not unreasonably restrict or regulate farm operations. For example, conditions placed upon an approval or the cost and time involved to complete the review process could be unreasonably restrictive. Agricultural Exemptions State Environmental Quality Review (SEQR) - Agricultural farm management practices, including construction, maintenance and repair of farm buildings and structures, and land use changes consistent with "generally accepted principles of farming" are designated as Type 11 actions which do not require preparation of an Environmental Assessment Form (EAF) and are not subject to compliance with State Environmental Quality Review (SEQR). 6 NYCRR §617.5(a), (c)(3). [See In the Matter of Pure Air and Wafer Inc. of Chemung County v. Davidsen, 246 A.D.2d 786, 668 N.Y.S.2d 248 (3Td Dept. 1998), for application of the exemption to the manure management activities of a hog farm.] The SEQR regulations require localities to recognize the Type II actions contained in the statewide list. New York State Uniform Fire Prevention and Building Code - While farmers must comply with local requirements which regulate health and safety aspects of the construction of farm buildings, many farm buildings are exempt from the State Uniform Fire Prevention and Building Code ("Uniform Code"). The Uniform Code recently underwent major revisions and now is comprised of seven sub-codes (the Building Code, Fire Code, Residential Code, Plumbing Code, Mechanical Code, Fuel Gas Code, and the Property Maintenance Code). The exemption for agricultural buildings has been incorporated in the following portions of the revised Uniform Code and the Energy Conservation Construction Code, which became fully effective on January 1, 2003. Agricultural building is defined in §202 of the Building Code as "A structure designed and constructed to house farm implements, hay, grain, poultry, livestock, or other horticultural products. This structure shall not be a place of human habitation or a place of employment where agricultural products are processed, treated or packaged, nor shall it be a place used by the public." 9116103 • Building Code §101.2(2) provides an exemption from the Building Code for "[a]gricultural buildings used solely in titin arfarmg, operatic or storage of agricultural products by a farmer engage Section 102.1(5) of the Fire Code of New York State provides that • "[a]gricultural buildings used solely in the raising, growing or storage of agricultural products by a farmer engaged in a farming operation" are exempt from the provisions of the Fire Cade pertaining to construction but are subject to applicable requirements of fire safety practice and m• ethodology. Section 101.4.2.5 of the Energy Conservation Construction Code ("ECCC") exempts "nonresidential farm buildings, including barns, sheds, poultry houses and other buildings and equipment on the premises used directly and solely for agricultural purposes" from the provisions of the ECCC. The above briefly highlights the agricultural buildings exemptions. Any specific questions regarding the interpretation and applicability of the revised State Uniform Fire Protection and Building should be directed to the Department of State's Codes Division at ( ) 74-40 Professionally Stamped Plans - Education Law §7209(1) provides that no official of the State or any city, county, town or village chargee anged y the enforcement of laws, ordinances or regulations may accept or app y Pfans or specifications that are not stamped with the seal of an architect, or professional engineer, or land surveyor licensed or authorized to practice in the State. Thus, where local laws, ordinances or regulations require that plans and specifications for private construction beacceptedseal, subjeor ct t etdhehey may exceptionstset be accepted or approved without the required forth in the statute. 1981 Op Atty Gen April 27 (informal). However, the exceptions contained in Education Law §7209(7)(b) include "farm buildings, including barns, sheds, poultry houses and other buildings used directly and solely for agricultural purposes." As a d Vit' anplarchitecns a specifications for such buildings are not required to be stamp y professional engineer or land surveyor.3 Against this backdrop, specific guidelines for review of zoning and planning regulations by local governments and the Department can best be understood. Generic Review Guidelines Generic reviews are those of entire zoning regulations or sections of zoning as a class regulations that impact the municipality's faractions tionsunity which might �esul# inr a farm operations in the same way. Examples generic review include the adoption or administration of an entirely new or 3 similar requirements and exceptions are also provided in Education Law§7307(1) and (5). —�— 9116103 substantially amended zoning regulation that results in a material change in the use and area standards applied to farm operations in a State certified agricultural district. In such cases, the Department recommends that the municipality ask itself the following questions: • Do the regulations materially limit the definition of farm operation, farm or agriculture in a way that conflicts with the definition of "farm operation" in AML §301, subd.11? • Do the regulations relegate any farm operations in agricultural districts to "non-conforming" status? • Is the production, preparation and marketing of any crop, livestock or livestock product as a commercial enterprise materially limited, resticted or prohibited? • Are certain classes of agriculture subject to more intensive reviews or permitting requirements than tloth�h n For epaodulction "animal without agriculture" treated differently demonstrated links to a specc and meaningful a real and tangible public health or safety standard designed to address • Are any classes of agricultural activities meeting the definition of "farm operation" subject to special permit, site plan review or other original jurisdiction review standard over and above ministerial review? • Are "farm operations" subject to more intensive reviews than non-farm uses in the same zoning district? • Are "farm operations" treated as integrated and interdependent uses, or collections of independent and competing uses on the same property? is the regulation in accordance with a comprehensive plan and is such • a plan crafted consistent with AML Article 25-AA as regired by law? If the answer to any of the first six questions is "yes," or if the answer to either of the last two is "no," the zoning regulations under review are likely to be problematic and may be in violatiotion of �,§ina onsistend# with the l statutorynly such regulations would appear to be on the requirement that "Local governments ••• sll exercise these ef forth in this articleawers jArt clen25AA- such manner as may realize the policy and goals Agricultural Districts]." Guidelines for Site Specific Reviews AML §305-a zoning case reviews often involve application of zoning regulations to a specific farm operation. Such cases typically result from applying the site plan, special use permit, use or non-conforming use sections, yard requirements, or lot density sections of the municipal zoning device to an existing farm operation. 9116103 These cases often evolve because although the zoning regulation may appear to be consistent with the agricultural districts law, its application to a specific issue or set of facts is not. In such cases, the Department recommends that the municipality ask itself the following questions.' • Is the zoning regulation or restriction being applied to a use normally and customarily associated with a "farm operation" as defined in AML Article 25-AA? • Does the regulation or restriction materially limit the expansion or improvement of the operation without offering some compelling public benefit? • Is the regulation or restriction applicable to the specific farm operation in question or, under the same circumstances, would it apply to other farm operations in the community? • Does the zoning regulation impose greater regulation or restriction on a use or farming activity than may already be imposed by State or federal statute, rule or regulation? • Is the regulation or restriction the result of legislative action that rendered the farm operation a "non-conforming use"? If the answer to any of these questions is yes, then the zoning regulation or restriction under review is likely to be problematic and may be in violation of the statutory prohibitions against unreasonably restrictive regulation of farm operations in an agricultural district, unless a threat to the public health or safety is demonstrated. Guidance on Specific Zoning Issues The following are some specific factors that the Department considers when reviewing local zoning laws A. Minimum and Maximum Dimensions Generally the Department will consider whether minimum and maximum dimensions imposed by a local law can accommodate existing andlor future farm needs. For example, many roadside stands are located within existing garages, barns, and outbuildings that may have dimensions greater than those set by a local ordinance. Also, buildings specifically designed and constructed to accommodate farm activities may not meet the local size requirements (e.g., silos and barns which may exceed maximum height limitations). The size and scope of the farm operation should also be considered. Larger farms, for example, cannot effectively market their produce through a traditional roadside 4 Please see other Department guidance documents for further information on issues related to specific types of farm buildings and practices. 10 9116103 stand and may require larger farm markets with utilities, parking, sanitary facilities, etc. B. Lot Size Establishing a minimum lot size for farm operations within a zoning district that includes land within a State certified agricultural district might be unreasonably restrictive. The definition of "farm operation" in AML §301, subd. 11 does not include an acreage threshold. Therefore, the Department has not set a minimum acreage necessary for protection under AML §305-a and conducts reviews on a case-by-case basis. For example, a nursery/greenhouse operation conducted on less than 5 or 10 acres may be protected as a "farm operation" under §305-a if the operation is a "commercial enterprise" and more than a hobby farm. For agricultural assessment purposes, however, AML §301, subd. 4 states that a farm must have "land used in agricultural production" to qualify (either seven or more acres and gross sales of an average of $10,000 or more in the preceding two years or have less than seven acres and average gross sales of more than $50,000 in the preceding two years). A recent amendment to AML §301, subd. 4 also provides for an agricultural assessment on seven or more acres which has an annual gross sales of $10,000 or more "...when such land is owned or rented by a newly established farm operation in the first year of operation." AML §301, subd. 4.h. Laws of 2003, Chapter 479, effective September 9, 2003. Local requirements for minimum lot sizes for farm buildings raises concerns similar to those involving minimum and maximum building dimensions. A farmer may be unable to meet a minimum lot size due to the configuration of the land used for production or lying fallow as part of a conservation reserve program. The need to be proximate to existing farm roads, a water supply, sewage disposal and other utilities is also essential. Farm buildings are usually located on the same property that supports other farm structures. Presumably, minimum lot size requirements are adopted to prevent over concentration of buildings and to assure an adequate area to install any necessary utilities. Farm buildings should be allowed to be sited on the same lot as other agricultural use structures subject to the provision of adequate water and sewage disposal facilities and meeting minimum.setbacks between structures. C. Setbacks Minimum setbacks from front, back and side yards for farm buildings have not been viewed as unreasonably restrictive unless a setback distance is unusually long. Setbacks that coincide with those required for other similar structures have, in general, been viewed as reasonable. 9116103 A farm operation's barns, storage buildings and other facilities may already be located within a required setback, or the farm operation may need to locate new facilities within the setback to meet the farm operation's needs. Also, adjoining land may consist of vacant land, woodland or farmland. The establishment of unreasonable setback distances increases the cost of doing business for farmers because the infrastructure needed to support the operation (e.g., water supply, utilities and farm roads) is often already located within, and adjacent to, the farmstead area or existing farm structures. Setbacks can also increase the cost of, or make it impracticable to construct new structures for the farm operation. D. Sign Limitations: Whether or not a limitation on the size and/or number of signs that may be used to advertise a farm operation is unreasonably restrictive of a farm operation depends upon the location of the farm and the type of operation. A farmer who is located on a principally traveled road probably will not need as many signs as one who is located on a less traveled road and who may need directional signs to direct the public to the farm. The size of a sign needed may depend on whether the sign is used to advertise the farm's produce or services (e.g., for a commercial horse boarding operation) as part of the farm's direct marketing, or just for directional purposes. E. Maximum Lot Coverage Establishing a maximum lot coverage that may be occupied by structures may be unreasonably restrictive. For example, it may be difficult for horticultural operations to recoup their investment in the purchase of land if they are not allowed to more fully utilize a lot/acreage for greenhouses. Farm operations within an agricultural district should be allowed the maximum use of available land, consistent with the need to protect the public health or safety. Generally, if setbacks between buildings are met and adequate space is available for interior roads, parking areas (where required), and safe operation of vehicles and equipment, health and safety concerns are minimized. F. Screening and Buffers Some municipalities impose buffer requirements, including setbacks where vegetation, landscaping, a wall or fencing is required to partially or completely screen adjacent land uses. Often, the buffer area cannot be used or encroached upon by any activities on the lot. Requirements for buffers or setbacks to graze animals, construct fences and otherwise use land for agricultural purposes are generally unreasonably restrictive. Buffers and associated setbacks may require. farmers to remove land from production or otherwise remove land from use for the farm operation. The impact on nursery/greenhouse operations is especially significant since they are often 12 9116103 VAN DEWATER AND VAN DEWATER,LLP COUNSELORS AT LAW JOHN B.VAN DEWATER(1892-1968) -MILL&GARDEN STREETS NOEL DECORDOVA,JR. ROBERT B.VAN DEWATER(1921-1990) P.O.BOX 112 - EDWARD VK CUNNINGIIAJ9,JR. DAVID A.HAGSTROM POUGHKEEPSIE,NEW YORK 12602 SUSANNA E.BEDELL JOHN K.GIFFORI) ELIZABETH A.ROOSA JAMES E.NELSON (845)452-5900 - PETER J.DRANGINIS,JR. GERARD J.COMATOS FAX(845)452-5848 COUNSEL RONALD C.BLASS,JR. REBECCA S.MENSCH E-MAIL ADDRESS: VANDEWATERLAIV&AOL.COAI - CHRISTINE H.CUIDO CYNTHIA S.ROSENZWEIG May 2 , 2001 rowF9�,s2tvl Constance 0. Smith, SupervisorORs 20wMiddlebpphnRoadinger Town Hall lN,gppNG/9 Wappingers Falls, NY 12590 Vincent Bettina, Councilman, Ward 2 Town of Wappinger Town Hall 20 Middlebush Road Wappingers Falls, NY 12590 Albert P. Roberts, Esq. Vergilis Stenger Roberts & Pergament 1136 Route 9 . Wappingers Falls, NY 12590 Re : Property of Mario A. Vilardi DMD Our File No. 10930-001 Dear Su-oervisor Smith, Councilman Bettina and Mr. Roberts : This letter concerns the property of Dr. Vilardi on which he is currently constructing a new residence in the Town of Wappinger. The property extends from frontage on Baxtertown Road in the Town of .Fishkill to vacant land which fronts on Kretch Circle in the Fleetwood Manor Subdivision. RECEIVED MAY 17 2001 TOWN CLERK Constance 0. Smith, Supervisor Vincent Bettina, Ward Councilman Albert P. Roberts, Esq. May 2 , 2001 Page 2 ------------------------- Some time ago, Dr. Vilardi discussed the filing of a four lot subdivision application with the Zoning or Building Departments of the Town of Wappinger. A copy of the concept subdivision plat is provided with the version of this . letter being submitted to Town Attorney Roberts . Lot 4 of the proposed subdivision constitutes 56 . 8587 acres, of which approximately 5 acres are located in the Town of Fishkill . The balance is located in the Town of Wappinger. At the northeasterly boundary of proposed Lot 4 is a "proposed road" connecting to existing Kretch Circle which was established upon development of the Fleetwood Manor Subdivision consistent with a final plat filed on or about February 3rd, 1961 in the office of the Dutchess County Clerk as filed map #2956 . I have reviewed the subdivision map for the Fleetwood Manor Development . It shows the reservation of a 50 foot wide corridor or stub (hereafter the "corridor" ) extending, for future road purposes, from Kretch Circle to the lands currently owned by Dr. Vilardi . The road extension corridor is situate between Lot 1 and Lot 15 on the Fleetwood Manor Subdivision Plat . In general terms, Dr. Vilardi has been advised by zoning or building officials of the Town. of Wappinger that his proposed four lot subdivision, to the extent that it provides for Constance 0. Smith, Supervisor Vincent Bettina, Ward Councilman Albert P. Roberts, Esq. May 2 , 2001 Page 3 -------------------------- servicing of lot 4 by a proposed road connecting to Kretch Circle, cannot be processed until and unless our client acquires title to the proposed road bed, or until and unless some other arrangements are made to give the Town and/or Dr. Vilardi the right to enter upon and to improve the corridor for road purposes . Title to the Kretch Circle corridor remains in the parties which developed the Fleetwood Manor Subdivision long ago. Good faith efforts to discuss the matter with that prior owner, although unnecessary in retrospect, have not been proven fruitful . We have recently been asked to review the situation by Dr. Vilardi, and to render our opinion as to the best manner to proceed in the interests of both our client and the Town of Wappinger. It is my opinion that the Kretch Circle corridor, extending between Lots 1 and 15 of the Fleetwood Manor Subdivision to the lands of Dr. Vilardi., constitutes a "paper road" shown on a filed subdivision plat, and, as such, the filing of the plat created a continuing offer to cede that real property to the Town for road purposes . This conclusion stems from the provisions of current Section 279 of the Town Law (formerly § 278 until renumbering in 1992) . f Constance O. Smith, Supervisor Vincent Bettina, Ward Councilman Albert P. Roberts, Esq. May 2 , 2001 Page 4 ------------------------- Continuing offers of cession established by statute are subject to revocation, unless a revocable offer of cession has been provided by the developer. We are in no position, at present, to know whether an irrevocable offer of cession was provided to the Town in the context of the Fleetwood Manor Subdivision approval, but it is doubtful this occurred back in 1.961 . It certainly makes sense for the Town to assess the proposed subdivision in terms of the ability for access to Lot 4 from Kretch Circle . We conclude that the current owner of title to the corridor has no right to interfere with the Town' s acceptance of the statutory offer of cession, and the Town should pass a resolution accepting the offer of cession, and so notifying the property owner. There is no need to require Dr. Vilardi to negotiate with this intransigent property owner, nor is there any need for the Town to go to the burden and expense of exercising eminent domain. Indeed, some years ago I litigated a matter in the Town of Beekman on behalf of private property owners who opposed the extension of a cul-de-sac which affected their property, even though the extension was shown on a subdivision map. The Town of Beekman undertook to condemn land necessary to extend the cul-de- sac, when in reality the Town need only have sent a letter accepting the offer of cession created by the filed subdivision J Constance 0. Smith, Supervisor Vincent Bettina, Ward Councilman Albert P. Roberts, Esq. May 2 , 2001 Page 5 ------------------------- plat . The eminent domain proceeding was opposed by my client, the Town eventually prevailed, but the Town wasted significant money and resources in prosecuting the needless proceeding. In the event the Town passes a resolution accepting the offer of cession and so notifies the current property owner of the corridor, I believe the following batting order is appropriate : 1 . Upon the exercise of the offer of cession, title will remain in the underlying property owner, but the Town will have vested its right to allow entry upon and development of the corridor for road purposes; 2 . Dr. Vilardi' s subdivision can proceed forward to review on its merits; 3 . In the event of approval, and in the event of the need to improve the corridor for access, Dr. Vilardi could be expected to bond and to perform the improvements; 4 . Upon completion, the extended roadway might be dedicated to the Town of Wappinger. Constance 0. Smith, Supervisor Vincent Bettina, Ward Councilman Albert P. Roberts, Esq. May 2 , 2001 Page 6 ------------------------- I would like to discuss this proposal further at your convenience . Very truly yours, VAN DEWATER & VAN DEWATER, LLP By: 4�9/ RONAL C. BLASS, JR. RCB/lh:n CC ; Mario A. Vilardi, DMD K:IWPDOCS%ViSardi,Mario A,DDS104.27.01]tr to Smith Bettina and Robermwpd TOWN OF WAPPINGER PLANNING BOARD DISTRIBUTION SUBDIVISION- SIGNED RESOLUTION & FILED MAP FILED MAP##_11071_ PROJECT NAME: VILARDI SUBDIVISION DATE PREPARED: OCTOBER 10,2000 DISTRIBUTED FOR YOUR RECORDS RESOLUTION WITH APPROVED PLANS: X TOWN FILE N TOWN ENGINEER. • TOWN PLANNER N TOWN ASSESSOR X FIRE PREVENTION BUREAU X HIGHWAY SUPERINTENDENT RESOLUTION ONLY: TOWN CLERK (ORIGINAL): X RESOLUTION FILL: • TOWN ATTORNEY X BUILDING INSPECTOR X TOWN BOAR x TOWN SUPERVISOR X CAG APPLICANT X APPLICANT'S ENGINEER I ARCHITECT RECREA'T'ION DC DEPT, OF PUBLIC WORKS (COUNTY ROAD) DEPT. OF TRANSPORTATION(STATE ROAD) VILLAGE OR TOWN FREDERICK P. CLARK ASSOCIATES, INC. David J. Portman, FAicp Planning/Development/Environment/Transportation Howard 1. Reynolds, PE Rye, New York and Fairfield, Connecticut David H. Stolman, AICP, PP 350 Theodore Fremd Avenue MichaelA. Galante Rye, New York 10580 Joanne R Meder, AICD (914) 967-6540 - FAX (914) 967-6615 Daniel K. Wery, AICP MEMORANDUM To: Town of Wappinger Planning Board 20H -Zot4�NG AYM"STRATOR Date: September 13, 2000 TOS NM OF WpppINGER Subject: Vilardi 4-Lot Subdivision - Resolution of Preliminary and Final Subdivision Plat Approval As requested, we have prepared the attached revised resolution of Preliminary and Final Subdivision Plat Approval for your review and consideration. The resolution has been revised to reflect the recently submitted plans and to correctly characterize the nature of the application. Daniel K. Wery, AICP Vice President/Planning cc: Albert P. Roberts, Esq. Joseph E. Paggi, Jr., PE Tatiana Lukianoff, Zoning Administrator Applicant Attachment v:\docs2\500\wappinger\vi lard i_p+f-res_cover2.dsk.doc Connecticut - (203) 255-3100 email@fpciark.com Long Island (516) 364-4544 www.fpclark.com VU ARDI 5-LOT SUBDIVISION RESOLUTION OF PRELIMINARY AND FINAL PLAT APPROVAL 5. The Planning Board hereby grants both Preliminary and Final Subdivision Plat Approvals for a 4-lot Subdivision Project as herein defined to the Applicant subject to the following conditions and modifications which must be satisfied prior to the signing of the final plat by the Chairman of the Planning Board: a. The Owner shall endorse a copy of this resolution and submit it to the Planning Board for its files. b. The Applicant shall submit the plans to the Dutchess County Health Department for review and approval and endorsement. C. The Applicant shall submit a statement signed by the Town's Tax Collector that all taxes due on the subject property have been paid. 6. Conditional approval of the final plat shall expire one hundred eighty (180) days from the date of this resolution unless all requirements have been certified as completed or unless a written request for an extension of Final Subdivision Plat Approval (not to exceed two (2) ninety (90) day periods) is granted. 7. In accordance with the Town's Schedule of Fees, the Applicant shall be responsible for the payment of all application review fees incurred by the Planning Board in review of this Project which are in excess of the application review fees paid by the Applicants to-date. Such fees shall be paid within thirty (30) days of the notification to the Applicant that such fees are due. If such fees are not paid within this thirty (30) day period and an extension therefor has not been granted by the Planning Board, this resolution shall be rendered null and void. Refunds of any remaining funds within the escrow account for the applications will not be made until six (6) months after the filing of the subdivision plat. 8. The Planning Board Chairman shall endorse a copy of this resolution certifying its correctness. The Applicants shall also sign a copy of this resolution after it has been initially endorsed by the Chairman acknowledging his receipt of a copy of the resolution. When all of the conditions set forth in the conditions above have been satisfied, a copy of the final subdivision plat,revised as necessary, shall be submitted for endorsement by the Planning Board Chairman, certifying that the plans comply with the terms of this resolution, at which time, the Chairman shall also endorse this resolution in the space provided below, certifying that the applicants has complied with the above conditions of approval and that the Final Plat is authorized for filing with the County Clerk, Division of Land Records. 4of5 -VILARDI5-LOT SUBDIVISION RESOLUTION OF PRELMENARY AND FINAL PLAT APPROVAL The question of adoption of the foregoing resolution was duly put to a vote on roll call, which resulted as follows: Philip J. DiNonno, Chairman Voting: Guy Gagne Voting: George Grimshaw Voting: Hugo Musto Voting:E-�- William Parsons Voting: �iu0 June Visconti Voting: aqg a"^ Robert Walker Voting: The resolution is hereby duly declared adopted. Dated: September 18,2000 Wappingers Falls,New York Philip J. DiTqonno, Chairman Date Town of Wappinger Planning Board Mario A. Vilardi, Property Owner Date The following endorsement hereby confirms that the Applicants have fulfilled all of the conditions of this resolution of Final Subdivision Plat approval and authorizes the filing of the Final Subdivision Plat with the County Clerk, Division of Land Records. - a12'20100 Philip J. DiNonno, Chairman Date Town of Wappinger Planning Board v:ldocs215001wappingerlvilardi_p+f sub res.dsk.doc 5 of 5 VILARDI 5-LOT SUBDIVISION RESOLUTION OF PRELIMINARY AND FINAL PLAT APPROVAL Board, this resolution shall be rendered null and void. Refunds of any remaining funds within the escrow account for the applications will not be made until six (6) months after the filing of the subdivision plat. 8. The Planning Board Chairman shall endorse a copy of this resolution certifying its correctness. The Applicants shall also sign a copy of this resolution after it has been initially endorsed by the Chairman acknowledging his receipt of a copy of the resolution. When all of the conditions set forth in the conditions above have been satisfied, a copy of the final subdivision plat,revised as necessary, shall be submitted for endorsement by the Planning Board Chairman, certifying that the plans comply with the terms of this resolution, at which time, the Chairman shall also endorse this resolution in the space provided below, certifying that the applicants has complied with the above conditions of approval and that the Final Plat is authorized for filing with the County Clerk, Division of Land Records. The question of adoption of the foregoing resolution was duly put to a vote on roll call, which resulted as follows: Philip J. DiNonno, Chairman Voting: C"I C Guy Gagne Voting: 01, George Grimshaw Voting: Hugo Musto Voting: A- William Parsons Voting: June Visconti Voting: Robert Walker Voting: The resolution is hereby duly declared adopted. Dated: June 19, 200O Wappingers Falls, New York Id's Philip J. DiNonno, Chairman DatZ Town of Wappinger Planning'Board Mano ,"Iardi, Property Owner Date, 4 of 5 n W February 2, 1999 Elaine Snowden Town of Wappingers Planning Board Middlebush Rd. Wappinger Falls,NY Dear Elaine, As per our conversation, I would like to set up a meeting with the Town Beard to discuss a problem that occurred in front of the Planning Board last year regarding tax lot parcel #19-615601-288587. As you may recall, I was in front of the Planning Board regarding a sub division when it was brought to my attention that a 50ft. right of way(which I was under the impression was owned by the Town of Wappingers), was in fact owned by a private individual. The title search indicated that this parcel, which was taxed for 30 years, was owned by Gallo Brothers:holding Company. The Gallo brothers were unaware and were under the impression that this parcel was dedicated to the town for the subdivision. It was the impression of the previous owner of my property that in exchange for a water runoff pipe on my property the town was suppose to acquire this land. All efforts to acquire the 50 ft. runway has failed. I would like to discuss this with the Town Board to correct or suggest a solution to this problem. Please schedule at date. Sincerely, Mar"" A.`' ilardi Baxtertown Rd. Wappinger Falls,NY 12.590 (914)896-7965 RECE vED FEB 0, Z� 1999' ELAINESNOWOEN fOWN CLE , 03/22/99 RGM The Town Board Meeting for the Town of Wappinger was held on March 22, 1999 at the Town Hall, 20 Middlebush Road, Wappingers Falls, NY. Supervisor Smith called the meeting to order at 7:30 p.m. Present: Constance Smith, Supervisor Robert Valdati, Councilman Vincent Bettina, Councilman Joseph Ruggiero, Councilman Joseph Paoloni, Councilman(arrived at 7:32 p.m.) Elaine H. Snowden, Town Clerk Others Present: Jay Paggi, Engineer to the Town Al Roberts,Attorney to the Town Graham Foster, Highway Superintendent The Supervisor asked all to join in the Pledge of Allegiance to the Flag. MINUTES The Minutes of the Regular Meetings of February 22, 1999/March 8,1999, and Workshop Meeting of March 8, 1999, having previously been forward to the Board Members, was now placed before them for their consideration. COUNCILMAN VALDATI moved that the above stated minutes as presented by the Town Clerk be and they are hereby approved. Seconded by Mr. Bettina Motion Unanimously Carried REPORTS OF OFFICERS Reports for the month of February were received from the Town Justices, Supervisor/Comptroller, Receiver of Taxes, Building Inspector, Zoning Department, Recreation Annual Report and the Supervisors Annual Financial Report, which was filed with the Town Clerk, Elaine Snowden, on March 22, 1999. COUNCILMAN RUGGIERO moved to accept the reports and place them on file. Seconded by Mr.Valdati Motion Unanimously Carried PETITIONS & COMMUNICATIONS Correspondence from Dr. Mario Vilardi of Baxtertown Road wishing to meet with the Board to discuss a problem that occurred last year when he went before the Planning Board to discuss subdividing his property. It was brought to his attention that a 50 ft. right of way(which he was under the impression was owned by the Town of Wappinger), was in fact owned by a private individual. The title search indicated that this parcel,which went untaxed for 30 years,was in fact owned by Gallo Brothers Holding Company. Mr. Gallo was under the impression that this parcel was dedicated to the 1 03/22/99 RGM town years ago, in exchange for a water runoff pipe on the property. All efforts to acquire the 50 ft. runway have failed. He is here tonight to get some input from the board, and perhaps come up with a solution to this problem.He was wondering if the town could condemn the property, and take it over, since Mr. Gallo has not paid taxes all these years, and Dr.Vilardi can not get him to sell. Mr. Roberts explained there is no public benefit to condemning the land, and we could not spend public funds, no matter what the cost, and the only purpose here would be to advance your subdivision. Dr.Vilardi is requesting the town to include the property on the tax rolls so there is some incentive for Mr.Gallo to believe he does own the property,and perhaps he can be dealt with. Mr.Gallo is up in years, and he is very hostile. Discussion followed with the Assessor in attendance. COUNCILMAN VALDATI moved to authorize the Assessor, Linda Tasadfoy to investigate further, and advise the town board. Seconded by Mr.Ruggiero Motion Unanimously Carried Dr.Vilardi explained that the spot that he would like to build a house is beyond the Town of Fishkill line which crosses into Wappinger. All his services come from the Town of Fishkill. In order to simplify things, he was wondering if a small section could be annexed to the Town of Fishkill so that he does not have to deal with variances,because it is landlocked. It has no road frontage. COUNCILMAN VALDATI moved to authorize Attorney to the Town, Al Roberts to prepare a written opinion on annexation. Seconded by Mr. Bettina Motion Unanimously Carried Correspondence from Jean Gunsch, NYSDOT in response to the letter from Joseph Grogan, dated 9/9/98 concerning the request for a speed limit reduction on Chelsea Road, CR 92 between Route 9D and the existing 30 MPH speed limit in the hamlet of Chelsea. A review of this roadway was conducted. As a result,it was found that the majority of the roadway section is conducive to speeds between 40 and 45 MPH. Consequently, a reduction in the existing 40 MPH legal limit would not be appropriate. Discussion followed. COUNCILMAN BETTINA moved to authorize Supervisor Smith set up a meeting with the DOT and Mr.Bettina also in attendance,for further discussion on this matter. Seconded by Mr.Ruggiero Motion Unanimously Carried 2 c. C _ a / TCq Y Oy q1glow. MIVE "Vi u� a5m,. � Ne � Q •� � �2. � i 1 P pyo " �-,- � r v .e I� s ma i �65yS }t I 4 ` I - L _ f 1 oP 0.�