INTRODUCTORY LOCAL LAW #__ OF 2006
A LOCAL LAW AMENDING CHAPTER 185 ENTITLED
“ZONING ”
OF THE CODE OF THE TOWN OF NEWBURGH:
BUFFER AND SETBACK REQUIREMENTS
BE IT ENACTED by the Town Board of the Town of Newburgh as follows:
SECTION 1 - TITLE
This Local Law shall be referred to as “A Local Law Amending Chapter 185 entitled ‘Zoning’ of the Code of the Town of Newburgh: Buffer and Setback Requirements”.
SECTION 2 – PURPOSE AND INTENT
The Town Board of the Town of Newburgh declares its intent to modify the “Buffer strips and screening” section of Chapter 185 entitled “Zoning” of the Code of the Town of Newburgh (§ 185-21), the definitions of “BUFFER OR BUFFER STRIP” and “SCREEN OR SCREENING” in § 185-3B, its references under §185-13B(5), §185-19E(1)(b), §185-23B(18)(a), §185-24B(5), §185-25C, §185-26E, §185-27C(5), §185-30A(3), §185-33D(3), §185-34C(1), §185-35F, §185-36C, §185-39B(2)(h), §185-40A(2), and §185-40D, so that buffers and screening shall be required between residential districts and adjacent non-residential uses and districts and between different residential uses. The Town Board of the Town of Newburgh also declares its intent to add the definitions of “BERM”, “CALIPER”, “DECIDIOUS”, “EVERGREEN”, “SHRUB”, “SOUND BARRIER” or “BARRIER” and “TREE” to § 185-3B.
Buffers and screening are currently required, subject to Planning Board review, for the side or rear yard in an IB or I District adjacent to a residence district. Buffers or screening are also currently required for off-street parking and loading facilities, mobile home courts, education facilities in the Education Facility Overlay District, multiple dwellings and townhouses, cluster developments, hotels, motels and accessory restaurants, junkyards and motor vehicle junkyards, marinas, self-storage centers, quarrying and removal of sand and gravel, petroleum bulk storage, satellite earth stations, and public utilities. During the rezoning process of 2000, the original intent of adding specific buffer regulations to tax parcels 39-1-2.12 and 3 off Jeanne Drive was to provide a greater separation and protection to those residential properties that are adjacent to industrial or commercial developments. Local Law No. 3 of 2000 provided for this change
Buffers or screening allow for the more orderly transition between residential uses and non-residential uses which are adjacent or in proximity. In addition, they protect the public health, safety, and general welfare by minimizing noise, air, dust, and visual pollution, reduce the heat and glare absorbed and radiated by development, preserve property values and the character of neighborhoods, help to control soil erosion and stormwater runoff, and improve the aesthetic appeal of the Town. The Zoning Code currently requires buffer areas and/or screening trees between the aforementioned uses or parcels and residential uses. However, such regulations are limited in the types of uses that they apply to and in the configuration of the buffer areas.
As stated in the adopted September, 2005 Comprehensive Plan Update, as the Town’s pace of development is anticipated to increase in the coming years, the conflicts between single-family residential and non-single-family residential uses will only increase. Therefore, implementing proper design controls for multiple dwelling and non-residential development, such as enhanced buffer regulations, is a crucial element to preserving the character of traditional single-family neighborhoods.
The Town Board has, therefore, determined that buffer requirements are necessary, not only between residential and non-residential uses, but between different residential uses in order to protect the character of existing neighborhoods. Each use should be evaluated separately for the type and size of buffer that it requires. To that end, specific guidelines are necessary as to the composition of materials and design of the buffers based on the required buffer widths. Creating a methodology for enhanced buffers will allow land uses to function without the potential visual, noise, and air impacts associated with adjacent development.
In the course of developing this local law and examining the issues, the Town Board has additionally determined that side and rear yard requirements for yards which are required to contain buffers must be also be addressed for both purposes of consistency and protecting and preserving residential uses
SECTION 3 - AMENDMENTS TO CHAPTER 185
1. Section 185-3 entitled “Definitions; word usage” is hereby amended by the addition or amendment of the following definitions:
“BERM – An earthen mound designed to provide visual interest, screen undesirable views, and/or decrease noise. A berm additionally is intended to give added height to other buffer elements.
BUFFER OR BUFFER STRIP — A strip of land containing natural vegetative growth, plantings of trees or shrubs, and which serves to separate distinct uses or activities either within a property or on adjacent properties
CALIPER – The diameter of a tree measured at a point six inches above the ground if the resulting measurement does not exceed four inches. For trees whose caliper exceeds four inches, the measurement is made at a point twelve inches above the ground. Measurement of tree diameters shall be made according to diameter at breast height (dbh).
DECIDUOUS – Woody plants that lose their foliage annually. Either:
(1) Canopy – A large maturing woody plant with a single trunk that will achieve a height of at least 35 feet at maturity; or
(2) Understory – A small maturing woody plant with a single trunk or multiple stems that will achieve a height of less than 35 feet at maturity.
EVERGREEN – Woody plants with foliage that persists and remains green year-round.
SCREEN OR SCREENING — A method of shielding or obscuring one abutting or nearby use from another use through either:
(1) A strip of land at least 10 feet in width supporting dense natural vegetative growth or with dense plantings of trees or shrubs of such types as will provide a year-round visual barrier;
(2) An opaque wall, fence or other visual barrier at least six feet in height above the ground; or
(3) Any other island, barrier, emplacement, wall, fence, tree, planting, shrubbery or other artificial or natural dividing strip or marker of any kind, wherever located on a parcel, that may be conditioned or required in any building permit, certificate of occupancy, site development plan, subdivision approval, special permit, variance, zoning amendment or other requirement of any board, agency, commission or official of the Town of Newburgh pursuant to this chapter.
SHRUB – A self-supporting woody perennial plant of low to medium height characterized by multiple stems and branches continuous from the base, usually not more than 10 feet in height at its maturity.
SOUND BARRIER or BARRIER – Any solid obstacle which is relatively opaque to sound and that blocks the line of sight from the sound source to the receiver. It may be erected specifically to reduce noise, for example: solid fences, berms, or walls.
TREE – A living woody plant with an erect perennial trunk and a definitely formed crown of foliage”
2. Subsection 185-13B (5) of Section 185-13 entitled “Off-street parking and loading facilities” is hereby amended to read as follows:
“(5) All such facilities shall conform to the minimum required setbacks for the district in which they are situated, and they shall be screened from view from any residential district. All screening shall be in accordance with the standards and requirements contained in § 185-21.”
3. Subsection 185-18C of Section 185-18 entitled “Exceptions to district regulations” is hereby amended to read as follows:
“C. Yard requirements.
(1) Yard requirements shall not apply t
(a) Chimneys, open trellises, unroofed steps or terraces not higher than one foot from ground level.
(b) Overhanging roof that does not project into the required yard over 10% of the required setback distance.
(c) Awning or movable canopy that does not project over 10 feet into a required yard area.
(d) Fences or walls.
(e) Infrastructure installed in connection with an approved site plan including walkways, curbs, fire lanes, driveways and other site access, railings, pump stations, meter pits, septic systems, lighting, electrical service equipment, stormwater management facilities including but not limited to detention basins, dumpster enclosures, traffic control signs and similar facilities.
(f) Off-street parking except where otherwise prohibited.
(2) If two or more existing dwellings are located within 200 feet on each side of a proposed dwelling and on the same side of the street within the same block and district, said proposed dwelling need not have a front yard greater than the average setback of all existing dwellings so located.
(3) The minimum width of each required side yard for a residential use on an existing lot providing less than the required lot width shall be reduced by 15 feet for lots in the R-1, AR and RR Districts and reduced by five feet for lots in the R-2 and R-3 Districts.
(4) Additional yard requirements.
(a) No building or structure shall be placed within 80 feet of the center line of Rock Cut Road, Drury Lane, Forest Road, Union Avenue (from the New Windsor line north to Union Avenue Extension), Union Avenue Extension or Plattekill Turnpike.
(b) Front yards abutting all county and state highways shall be at least 60 feet in depth, except where the majority of existing buildings on either side of the road within 300 feet from the intersection of the nearest property line and street line are of a lesser average depth. In such case, the front yard depth shall be 50 feet or the average of all lot depths within said 300 feet, whichever is greater.
(c) For all new development projects, the first 35 feet of the front yards of all properties fronting on Route 17K from the City of Newburgh west to the Town of Montgomery shall be landscaped. Private service or marginal roads (except for access driveways) and parking of vehicles shall not be permitted in these landscaped areas. The thirty-five-foot dimension shall be expanded to 45 feet for all properties on Route 17K which lie within 350 feet of the intersections of center lines of intersecting streets.
(5) Additional Side and Rear Yard Requirements for Lots Adjacent to Residence Districts
(a) A side or rear yard in the B, IB and I districts adjacent to a residence district and required to contain a buffer shall have a minimum width or depth in accordance with the following table which supersedes the Table of Use and Bulk Requirements. The Planning Board shall have the authority in its reasonable discretion to increase the minimum yard width or depth set forth in the following table if it determines a proposed use will have adverse effects on an existing residential neighborhood.
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MINIMUM SIDE/ REAR YARD ADJACENT TO RESIDENTIAL ZONE |
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BUILDING SIZE*** |
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B |
IB and I |
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Total building floor area less than 30,000 sq. ft |
The Greater of the Minimum Required Yard Set Forth in the B District Table of Bulk and Use Requirements - Schedule 7 or 25 feet* |
100 feet*
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Total building floor area 30,000 to 49,999 sq. ft. |
75 feet* |
125 feet* | |
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Total building floor area 50,000 to 74,999 sq. ft. |
100 feet* |
125 feet* | |
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Total building floor area 75,000 to 99,999 sq. ft. |
125 ft* |
150 feet* | |
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Total building floor area 100,000 to 124,999 sq. ft. ** |
175 feet* |
175 feet* | |
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Total building floor area 125,000 to 249,999 sq. ft. ** |
185 feet* |
185 feet* | |
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Total building floor area 250,000 to 500,000 sq. ft. ** |
200 feet* |
200 feet* | |
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Total building floor area greater than 500,000 sq. ft., ** |
225 feet* |
225 feet* |
Notes: * Add 2 feet to the minimum side/rear yard setback for each one foot in height above 35 feet. If there is more than one building on the lot, the height of the tallest building within 250 feet of the residential zone shall be utilized in the calculation.
** If a barrier conforming to § 185-21(D)(4) below is provided, the minimum side or rear yard setback for the yards containing the barrier abutting residential zones is 150 feet.
*** Total building floor area shall mean the aggregate floor area of all buildings, including accessory buildings, on the lot, or in the case of shopping centers, retail stores, restaurants, eating and drinking places, offices and business parks, the floor area of all buildings on the lot and on lots with adjoining parking areas, where any portion of the building is within 250 feet of a residential district boundary. For purposes of this provision adjoining parking areas shall mean parking areas with lanes or spaces within 50 linear feet of each other, connected by easement or right of way or under common management or control.
(b) Exceptions.
i. Residential uses permitted or permitted subject to site plan review in the B, IB and I Districts, including but not limited to active adult communities, assisted living facilities, independent living facilities and continuing care retirement communities and abutting residential districts shall be subject to a minimum setback equal to the lesser of the minimum setbacks set forth in the Table in §185-18C(5)(a) above or 75 feet in the B District and 90 feet in the IB and I Districts, provided however that if the building height exceeds 40 feet, the minimum setback shall be 75 feet. Affordable senior housing in the B, IB and I shall be subject to a minimum setback equal to the lesser of the minimum setbacks set forth in the Table in §185-18C(5)(a) above or 65 feet, provided however that if the building height exceeds 40 feet, the minimum setback shall be 75 feet.
ii. Notwithstanding anything to the contrary herein, townhouses accessory to marinas shall be subject to the same bulk requirements as marinas.
iii. The additional side and rear yard requirements set forth herein for lots adjacent to residential districts shall not apply to the boundaries with one or more parcel(s) in a Residence District if:
a. the abutting residentially zoned parcel is owned by a federal, state or municipal government and not utilized for housing, or
b. the abutting residentially zoned parcel is used solely for non-conforming business or industrial uses. Non-conforming business or industrial uses shall not be deemed to include vacant, undeveloped land, agricultural uses or partial residential uses, or
c. the adjacent yard of the abutting residentially zoned parcel contains protected wetlands which exceed the width of the additional side or rear yard requirement so that no residence can be constructed at a distance closer than the additional yard requirement plus the Residence District’s minimum yard requirement.
iv. If a parcel is divided by the boundary of a Residence District, the required additional side or rear yard shall be measured from the parcel boundary rather than the District boundary provided the residential portion is restricted from future residential development.
(c) No accessory uses or structures shall be permitted in the minimum setback area of such side and rear yards except those items set forth in §185-C(1) above. Required buffers within those minimum setback areas, however, shall be subject to the additional restrictions set forth in §185-21C(2) below
4. A new subsection (3) is hereby added to Subsection 185-19C “Non-conformity with bulk requirements” of Section 185-19 entitled “Nonconforming buildings and uses” to read as follows:
“(3) A building which received a certificate of occupancy on or before January 1, 2007 and which does not house a nonconforming use, but is nonconforming only as to district regulations for additional side or rear yard dimensions pursuant to § 185-18C or buffers pursuant to § 185-21 is permitted to be enlarged so long as the expansion is no closer to the boundary with the residential district than the existing building, the expansion has obtained all required approvals from the Planning Board on or before January 1, 2012 and is subject to buffer requirements imposed by the Planning Board pursuant to § 185-21C(6). Such a building expansion shall not be deemed an increase in the nonconformity of the building.”
4. A new paragraph (c) is hereby added to Subsection 185-19E(1) of Section 185-19 entitled “Nonconforming buildings and uses” is hereby added to read as follows:
“(c) Notwithstanding anything to the contrary herein, new standards and requirements for screening and buffers established by the amendment to this Code enacted as Local Law No. [ 1 ] of 2007 shall not apply to existing uses of open land, including but not limited to off-street parking and outdoor storage, which are in conformity with this Code immediately prior to the date of enactment of said local law, and site plans finally approved and filed in accordance with §185-58 prior to the effective date of said local law, provided such approval has not lapsed.”
5. Section 185-21 entitled “Buffer strips and screening” is hereby amended to read as follows:
Ҥ185-21. Buffer strips and screening.
A. Purposes. Buffers and screening allow for the more orderly transition from residential uses to non-residential uses which are adjacent or in proximity and between different types of residential uses. In addition, they protect the public health, safety, and general welfare by minimizing noise, air, dust, and visual pollution, reduce the heat and glare absorbed and radiated by development, preserve property values and the character of neighborhoods, help to control soil erosion and stormwater runoff, and improve the aesthetic appeal of the Town. Furthermore, in the community’s experience, noise generated by parking areas, including car door slammings, engine start ups, car pass-bys, slow moving delivery trucks, customers conversing, car stereos, occasional car alarms and horns, as well as maintenance activities such as sweeping and snow removal, becomes cumulatively excessive and offensive to nearby residences, particularly in evening hours, as the size of the parking area expands. Similarly, headlight glare increases with the size of the parking area as well as levels of usage. Large parking areas can also be large generators of auto exhaust as people search for parking spaces. Accordingly, this Section also requires additional buffering to adjacent residential uses when parking area sizes reach certain levels.
B. Screening Requirements. Screening requirements shall apply as follows:
(1) Rooftop and ground level mechanical equipment shall be screened from view through the use of landscaping and/or building design where the Planning Board determines it appropriate.
(2) Screening of playgrounds, parking and service areas, loading facilities, outdoor storage areas, hotels, motels and their accessory restaurant’s parking, garage areas, delivery or service yards and outdoor active recreation areas shall comply with the requirements set forth elsewhere in this Chapter and the standards herein. The Planning Board may in its discretion require proposed dumpster locations, garbage collection areas, utility boxes and similar site elements to be appropriately screened. In addition to the screening requirements set forth in §185-57 I(5), the Planning Board shall have authority in its discretion to require reasonable screening of parking and service areas from other public points of view and nearby residences, and to require the division of a proposed parking area into smaller parking areas with perimeter plantings around each area.
(3) Cellular towers, accessory structures that house the backup to such towers, and public utility transformers shall be screened and landscaped with a minimum of 10 feet on all sides (See Chapter 168).
(4) Vegetative screening at least 10 feet in width shall be provided adjoining the public thoroughfare from which no access is planned or permitted for any lot for single family or multiple family use having both its front and rear lot lines abutting a public thoroughfare, subject to the requirements of §185-17 for corner lots.
(5) Residential uses that are required to be buffered from other residential uses, as listed in § 185-21D(3) below, and which contain yards adjacent to a state or county highway or a Town collector road, shall include a minimum of 50 feet of vegetative screening in the area of the yard closest to the highway or collector road and shall be bermed when the Planning Board determines it appropriate in order to protect the residents from highway noise, headlight glare or auto exhaust.
(6) Stormwater management areas such as detention and retention basins shall be fenced. Stormwater management areas shall also be reasonably screened from public roads and adjacent residences unless designed to appear naturalistic in appearance. The Planning Board shall have authority to designate the type of fencing.
C. Applicability and General Standards for Buffers. Where vacant land is developed or reuse is proposed, buffers shall be required between dissimilar districts or uses.
(1) A buffer must be provided between any non-residential and residential use, and between single family and multiple family uses.
(2) No use or structure (except for those expressly authorized in this section), parking, light, sign, or outdoor storage shall be located within the buffer area. Fences, walls, barriers, underground infrastructure provided it does not prevent surface vegetation growth, landscaping, paved pedestrian and vehicular site access, driveways and related traffic control signs, curbs, railings and street lighting meeting the requirements of §185-21E(10) below and as perpendicular to the buffer as feasible, are permitted within the buffer area.
(3) Landscaped areas contained within required buffers may be used in meeting the landscaping requirements of this chapter, except internal parking area landscaping required pursuant to §185-13 D(9).
(4) The Planning Board, at its discretion, may determine that preservation and maintenance of existing vegetation within the minimum buffer will satisfy the requirements of this section, provided the existing vegetation provides as great or greater density and screening than the guidelines for suggested buffer materials referred to in §185-21E at full growth. The Planning Board may rely upon a certification by an arborist who has demonstrated knowledge and competency through obtainment of the current International Society of Arborculture arborist certification or who is a member of the American Society of Consulting Arborists or by a licensed landscape architect, provided such arborist’s or landscape architect’s experience and qualifications are acceptable to the Planning Board, that the existing vegetation provides greater density and screening than the guidelines for suggested buffer materials referred to in §185-21E at full growth in making its determination.
(5) As part of a site plan or plat, an alternative buffer may be reviewed and approved by the Planning Board, provided that it meets the intent of this section while recognizing unique conditions such as the actual proposed layout of building and parking areas, site conditions (for example, existing trees, topography or wetlands), and use of the property and adjacent properties. The Planning Board, however, shall have no authority pursuant to this Section to reduce the required width of the buffer or the height, length or useful life of barriers or alternative structures utilized to reduce minimum yard requirements or those buffer requirements which are otherwise subject to the Planning Board’s discretion
(6) As part of an amendment to a previously approved site plan or plat, the Planning Board may, at its discretion, require some or all of the buffering standards.
(7) Buffer materials (including topography and where berms are proposed) are to be illustrated on an approved plan, within the dimensions of the permanent buffer area.
(8) Buffers are to be installed as soon as possible, so plants can be established and screening achieved. The Planning Board shall require that buffer landscaping be secured in accordance with §185-57L.
(9) Gaps in buffers may be provided in the minimum width necessary for safety purposes for driveways and entry roads provided that the requirements of §185-21 E(12) below are met.
(10) No grading or other development activity which destroys vegetation shall be performed in required buffers unless for a use or structure permitted in the buffer pursuant to §185-21C(2) above and conducted with the permission of the Planning Board.
(11) Plans for landscaped areas within buffers shall be prepared by a licensed landscape architect or an arborist who has demonstrated knowledge and competency through obtainment of the current International Society of Arborculture arborist certification or who is a member of the American Society of Consulting Arborists, unless the Planning Board waives such requirement
D. Buffer Width Requirements.
(1) This Subsection presents two tables setting forth minimum buffer widths. The “Minimum Buffer Strip Requirement Table” sets forth minimum buffer widths for zones abutting residential zones and the “Buffer Requirements from Residential Uses in Residential Districts for Separate Land Uses Table” sets forth minimum buffer widths for certain uses abutting residential uses. The larger of the two width requirements shall be used in determining the minimum buffer width for property boundaries which are subject to both requirements, unless a width is otherwise specified elsewhere in this chapter.
(2) The “Minimum Buffer Strip Requirement Table” presents the minimum buffer widths that are required between differing districts.
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ABUTTING ZONE | |
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ZONING DISTRICTS REQUIRING BUFFERS |
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Residential Districts |
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Residential Districts |
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Business (B) District |
One-half the Minimum Rear or Side Yard Setback of the Yard Containing the Buffer Up to a Maximum of 50 feet | |
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Interchange Business (IB) District |
75 feet | |
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Industrial Business (I) District |
75 feet | |
Note: *Refer to the “Buffer Requirements from Residential Uses for Separate Land Uses Table” for minimum buffer widths between specific uses and residential uses.
(a) Exceptions.
i. Residential uses permitted or permitted subject to site plan review in the B, IB and I District shall be subject to a minimum buffer width requirement for rear and side yards which is the same as for multi-family dwellings in the R-3 District.
ii. No buffer shall be required for boundaries with properties in Residence Districts if:
a. the abutting residentially zoned parcel is owned by a federal, state or municipal government and not utilized for housing, or
b. the abutting residentially zoned parcel is used solely for non-conforming business or industrial uses. Non-conforming business or industrial uses shall not be deemed to include vacant land, agricultural uses or partial residential uses, or
c. the adjacent yard of the abutting residentially zoned parcel contains protected wetlands which exceed the width of the additional side or rear yard requirement so that no residence can be developed at a distance closer than the additional yard requirement plus the Residence District’s minimum yard requirement.
(3) The “Buffer Width Requirements from Residential Uses in Residence Districts for Separate Land Uses Table” presents buffer widths between specific land uses and residential uses. §185-25E below addresses vegetation and material requirements within buffers.
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Buffer Width From Residential Uses* |
Separate Land Use Descriptions |
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30 feet |
Golf courses; single-family dwelling cluster developments; places of worship |
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40 feet |
Public facilities including playgrounds; recreational facilities; Multiple family dwellings and townhouses**; active adult communities; assisted living facilities; continuing care retirement communities single-family attached, two-family and multifamily dwelling cluster developments; affordable senior citizen housing; community residences for the disabled; townhouses accessory to marina uses; membership clubs (nonrecreational). |
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50 feet |
Public swimming pools; day care facilities; landscape and wholesale plant nurseries; funeral homes; and marinas. |
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60 feet |
Commercial uses with higher vehicle activities, including but not limited to vehicle repair, vehicle sales and service stations; facilities with drive-up windows; car washes; hotels and motels; shopping centers; light manufacturing and research facilities; mobile home courts; education facilities in the Education Facility Overlay District; membership clubs (with recreational facilities); veterinarians’ offices, commercial kennels; any non-residential use with parking between 250 and 400 vehicles. |
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85 feet |
Non-residential uses associated with cluster developments; hospitals and nursing homes; substance abuse rehabilitation homes; any non-residential use with parking between 400 and 500 vehicles |
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100 feet |
Heavy industrial uses; heavy manufacturing; truck terminals; vehicular sales; equipment sales; facilities with outdoor storage; any use with parking for more than 500 vehicles; facilities with more than one loading dock within 200 feet and facing a yard adjacent to residential; public utility plants and substations; buildings over 50,000 sq. ft. in area. |
Notes: * For uses on lots in the B District, the required buffer width shall not exceed the minimum required side or rear yard dimension.
** This 40 foot buffer width requirement for multiple family dwellings and townhouses applies to single family and two family residential uses and vacant lands in all residential districts. For the buffer requirements from abutting multiple family dwelling or townhouse use properties, see § 185-25C (10) below.
(a) In the event a barrier is proposed to be utilized to reduce minimum yard requirements or those buffer requirements which are subject to the Planning Board’s discretion, the barrier shall be at least 50 feet longer than the length of each building on the lot within the reduced setback area facing the residential district boundary and there shall be no gaps. If the yard on that side of the building contains a paved area such as a fire lane, loading area or parking area which extends beyond the sides of the building, the barrier length shall be extended to 50 feet beyond the edge of pavement of the paved area in order to minimize flanking impacts.
(b) The barrier proposed to be utilized to reduce minimum yard requirements or those buffer requirements which are subject to the Planning Board’s discretion shall be in no event less than 10 feet high and shall be either a wall or a solid opaque fence.
(c) The barrier shall be made of materials approved by the Planning Board at its discretion, but shall in all events have a useful life of at least 40 years. The applicant shall produce documentation satisfactory to the Planning Board demonstrating the barrier’s useful life.
(d) The barrier shall be landscaped with adjacent plantings, and should incorporate appropriate design concepts to reflect the neighborhood and add visual interest to avoid monotonous appearance. Plantings shall be concentrated on the residential side of the barrier. Less intense plantings shall be provided on the non-residential side of the barrier. When it determines it appropriate, the Planning Board may require the barrier to be bermed.
(e) The barrier shall be located at least 100 feet from the property line, provided however, that if a buffer of less than 100 feet is required and a barrier is being required or provided, the barrier shall be located at the buffer line closest to the building.
(f) Any required drainage openings shall be of minimum size so as not to defeat the purpose of the barrier or else shielded.
(g) Local emergency response agencies shall be contacted early in the design process to determine the need for emergency access gates and fire hose openings.
(h) The owner shall be responsible for maintenance, repair and replacement of the barrier, including prompt removal of graffiti and cleaning.
(i) In addition to the barrier, the Planning Board may in its discretion require the applicant to add architectural treatments to building walls facing and visible to residentially zoned properties that avoid monotonous appearance.
(j) Per §185-21(C)(5) above, an alternative structure may be reviewed and approved by the Planning Board, provided that it meets the intent of this section while recognizing unique site conditions existing trees, topography, waterbodies, wetlands and the use of the property and neighboring properties. Such alternative structure must however, still meet the height, length and useful life requirements established above for barriers.
E. Buffer Materials. Buffers should contain a mix of tree and plant materials, including: berms, canopy deciduous trees, evergreens, understory deciduous trees, and shrubs, as well as non-vegetative materials, such as opaque fences and walls.
(1) Variety in species and design are encouraged.
(2) The Planning Board, working with the applicant/developer, will determine the required type and number of buffer materials.
(3) Existing vegetation shall be preserved wherever possible and all trees with a dbh eight inches or over within the minimum buffer shall be maintained unless their removal is approved by the Planning Board due to the location of permitted uses or structures within or crossing the buffer. The Planning Board shall require the submission of a tree protection plan prepared by an arborist who has demonstrated knowledge and competency through obtainment of the current International Society of Arborculture arborist certification or who is a member of the American Society of Consulting Arborists or by a licensed landscape architect. Unless the Planning Board, for good cause, determines otherwise, all trees and shrubs specifically required or designated to be preserved by the Planning Board shall be guarded as follows: (1) for trees or shrubs with a crown spread of eight (8) feet or less, a fence, frame or box not less than four (4) feet high and eight (8) feet square shall surround the tree or shrub; (2) For a tree with a crown spread over eight (8) feet, a fence not less than four (4) feet high shall be placed at least at the tree's dripline marking the outer edges of the branches or at a distance otherwise prescribed by the Planning Board. Fencing shall at a minimum be constructed of orange nylon type material and stakes. Fencing and other barriers shall be erected before site preparation begins and remain in place until granting of the Certificate of Occupancy, except for work specifically required in the tree protection area in the approved plans. The owner or contractor shall submit written verification to the Code Compliance Department that required tree barriers are in place prior to demolition or building permit issuance. Every effort to avoid compaction of soil porosity within the tree protection area shall be taken at all times as mitigation against injury. All building material, soil or debris shall be kept outside these barriers and water shall not be permitted to accumulate near the base of the tree. Roads and driveways shall be located as far from protected tree areas as possible. If a temporary driveway is needed in the root zone of a protected tree, twelve (12) inches of wood chips shall be used as a base for the equipment to drive on. Trees designated for protection shall not be damaged during site preparation activities or removed without the prior consent of the Planning Board. In the event that such trees specifically designated for protection are damaged during site preparation activities or removed without prior consent of the Planning Board, such trees shall be replaced by trees guaranteed and maintained for a period of two years. Preservation and replacement criteria shall not apply to the location of a barrier or berm within the buffer area. Unless the Planning Board, for good cause, determines otherwise, damaged, destroyed or removed protected trees shall be replaced by the caliper inch, such that for every inch of diameter (D.B.H.) removed, an equal number of caliper inches shall be replaced [for example, the unauthorized removal of one (1) twelve-inch D.B.H. tree shall necessitate the planting of six (6) two-inch D.B.H. trees or four (4) three-inch D.B.H. trees, etc.] until the approved buffer plantings densities have been achieved. Until such trees have been replaced, the bond or letter of credit posted by the developer for such tree replacement value shall not be reduced. Notwithstanding the foregoing, this section shall only apply to the extent that destruction of trees designated for protection results in a final buffer planting that is less than the approved plan’s densities. Unless the Town holds an adequate landscaping performance security ensuring the replacement of the damaged or destroyed protected vegetation in addition to the initial approved plantings, no site plan approval, special permit, building permit, certificate of occupancy, variance, or other Town permit or approval shall be issued by any Town agency for said property until such replacement has been completed and approved by the appropriate Town official or consultant. The requirement for approval established by the previous sentence supersedes other provisions of the Town of Newburgh Municipal Code, the Town Law of the State of New York including but not limited to Sections 267-a, 267-b, 274-a, 274-b and 276, and any other applicable New York State laws that are subject to the Town Board’s municipal home rule authority
(4) The Planning Board may require additional screening if existing vegetation is not thick enough to provide adequate screening.
(5) Guidelines for the suggested number and composition of buffer materials for each minimum buffer width are presented in the Table entitled “Suggested Mix of Vegetative Buffer Materials Table” at the end of this Chapter. The Table provides a guideline only and pursuant to Subsections 185-21E (2), (3) and (4) above, the Planning Board shall have authority to require greater density design and planting or less density design and planting when existing vegetation provides at least as great a density as landscaping planted in accordance with the guidelines will at full growth. Buffer design shall take into account the conditions and circumstances of the site and the proposed use. The Table entitled “Suggested Mix of Vegetative Buffer Materials Table” at the end of this Chapter provides guidelines for the suggested size and condition of buffer materials at installation and is also subject to Planning Board discretionary authority, provided at least as great a density as landscaping planted in accordance with the guidelines will be achieved at full growth.
(6) Where a required buffer exceeds 60 feet in width, the sixty (60) feet closest to the building(s) on the site shall be enhanced by the planting of dense buffer landscaping materials. The remaining buffer width closest to the property boundary shall remain undisturbed and maintained in its existing vegetative state.
(7) All plant material shall meet American Association of Nurserymen Standards.
(8) All plantings and existing trees designated for preservation that die or are destroyed within two years must be replaced.
(9) Non-vegetative buffering, such as walls or fences, shall be installed so as to cause minimal disturbance to existing vegetation or topography and shall be located so as to provide an effective visual screen.
(10) Along edges that abut residential districts or uses, driveways and entry roads within the required buffer area shall be additionally buffered with sound barriers, if the access use creates noise impacts, as determined through the environmental review process.
(11) An illustrative example of minimum yard, buffer width and material requirements is found with the Tables at the end of this Chapter.
F. Burden for Construction and Maintenance of a Buffer. It is the intent of this section that adjacent properties requiring a buffer between them will share equally in the development of the buffer, wherever possible. The burden of provision of the buffer shall be as follows:
(1) Where two different zoning districts or land uses requiring a buffer between them, are both in an existing improved condition, the buffer requirement is not retroactive. However, the provisions of §185-19 C apply in the event that any or all of the improved property is abandoned or demolished for the purpose of renewal or redevelopment, that portion of such property being renewed or redeveloped, shall conform to the provisions of this chapter and the applicant and redeveloper of such property shall assume the burden unless otherwise provided herein.
(2) Where both a non single-family residential district or use and a single-family residential district or use requiring a buffer between them are vacant or undeveloped, the burden shall be assumed by the owner and developer, if other than the owner, of the non single-family residential development, unless otherwise specified herein. The property owner and his or her agent is responsible for continuing maintenance of the buffer and any sound barrier or fence including prompt removal of graffiti and cleaning. Succeeding owners, lessees, and agents must also maintain the buffer, barrier or fence.
(4) Where a single-family residential use is proposed adjacent to an existing non-single family residential use or a non-residential use, screening shall be provided by the owner and developer, if other than the owner, of the single-family residential development through the use of additional landscaping and planting within the required setback areas. In the event the owner and developer are applying for subdivision approval, the Planning Board may require the submission of a landscaping plan for such screening in the setback areas.
(5) Failure to install or maintain a required buffer, barrier or fence in accordance with the requirements of this Chapter shall be an offense subject to the enforcement measures and penalties set forth in Article VII.
(6) In all residential zoning districts, maintenance of the buffer on single-family and two-family residential lots shall be at the discretion of the individual homeowner after the developer provides the buffer during initial development of the parcel and upon the expiration of any applicable landscaping maintenance security period. For multiple family, townhouse, clustered developments and in condominiums in residential zoning districts, however, buffers shall be required to be maintained by the property owner, agent, sponsor, board of managers, condominium or homeowners association upon its establishment and assumption of responsibility and ownership of common land areas, as the case may be.
G. Posting of a landscaping bond, letter of credit or deposit of funds as determined by the Board to secure installation in accordance with § 185-57L and survival and maintenance in accordance with § 185-50D shall be required.”
6. Subsection 185-23B(18)(a) of Section 185-23 entitled “Mobile home courts” , Subsection 185-24B(5) of Section 185-24 entitled “Education facilities in the Education Facility Overlay District”, Subsection 185-27C(5) of Section 185-27 entitled “Hotels, motels and accessory restaurants”, Subsection 185-33D(3) of Section 185-33 entitled “Junkyards and motor vehicle junkyards”, Subsection 185-35F entitled “Landscaping and security” of Section 185-35 entitled “Self storage centers”, Subsection 185-36C entitled “Fencing and security” of Section 185-36 entitled “Quarrying and removal of sand and gravel”, Subsection 185-40A(2) of Section 185-40 entitled “Satellite earth stations” and Subsection 185-46D entitled “Harmony with surroundings” of Section 185-46 entitled “Public utilities” are each hereby amended by the addition of the following sentence at the end of their texts:
“All screening shall be in accordance with the standards and requirements contained in §185-21.”
7. Subsection 185-25C (9) of Section 185-25 entitled “Multiple dwellings and townhouses” is hereby amended to read as follows:
“A rear or side yard between any townhouse or multiple-dwelling site and the adjacent single family use and two family use on any properties in any residential districts shall have a minimum width or depth in accordance with the following table which supersedes the Table of Use and Bulk Requirements.
|
MINIMUM SIDE/ REAR YARD ADJACENT TO RESIDENTIAL ZONE | ||
|
BUILDING LEGNTH OR HEIGHT |
| |
|
Average total length of buildings facing residential zone boundary of less than 75 ft and single story height |
50 feet | |
|
Average total length of buildings facing residential zone boundary of 76 to 125 ft. or two story height |
55 feet | |
|
Average total length of buildings facing residential zone boundary of 126 ft. or height above two stories on any side |
60 feet | |
|
|
| |
Note * Notwithstanding anything to the contrary herein, however, townhouses accessory to marinas shall be subject to the same bulk requirements as marinas.”
8. Subsection 185-25C (10) of Section 185-25 entitled “Multiple dwellings and townhouses” is hereby amended to read as follows:
“(10) All buffer strips and screening shall be in accordance with the standards and requirements contained in § 185-21, except for property lines abutting multiple dwelling or townhouse use properties in residential zones, the buffer strip shall be at least 50 feet in depth, of which a maximum of 20 feet may be used for parking, and the 30 feet closest to the property line shall contain plantings, either existing or proposed, sufficient to screen the townhouse or multiple-dwelling site from adjacent uses. No off-street parking areas or spaces shall be located within 30 feet of any such side or rear lot line abutting multiple dwelling or townhouse use properties in residential zones. No off-street parking areas or spaces shall be located in any overall parcel’s required front yard.”
9. A. Subsection 185-26E(1) of Subsection 185-26 entitled “Design Criteria” of Section 185-26 entitled “Cluster developments” is hereby amended to read as follows:
“E. Design criteria.
(1) Design criteria for all clusters.
(a) All buffer strips and screening shall be in accordance with the standards and requirements contained in § 185-21.”
B. Current Subsection 185-26E(1) of Subsection 185-26E entitled “Design Criteria” of Section 185-26 entitled “Cluster developments” is hereby re-designated as Subsection 185-26(E)(2).
C. Current Subsection 185-26E(2) of Subsection 185-26E entitled “Design Criteria” of Section 185-26 entitled “Cluster developments” is hereby re-designated as Subsection 185-26(E)(3) and the references therein at paragraphs (a) and (g) are hereby amended to read as follows:
“(a) Same as Subsection E(2)(a) and (b) above.”
“(g) Areas screened as provided in Subsection E(3)(d) above shall be provided for sorting and temporary storage of residents' recyclable waste, dumpsters and such other similar uses as the Planning Board may deem appropriate.”
10. Subsection 185-34C (1) of Section 185-34 entitled “Marinas” is hereby amended to read as follows:
“(1) Appropriate plantings and screening of parking and storage yards, in accordance with the standards and requirements contained in §185-21.”
11. Subsection 185-39B (2) (h) of Section 185-39 entitled “Petroleum bulk storage” is hereby amended to read as follows:
“(h) Landscaping or other screening. All screening shall be in accordance with the standards and requirements contained in §185-21.”
12. A new Subsection 185-57D(32) is hereby added to Section 185-57 entitled “Application procedure” to read as follows:
“32. For any site requiring side or rear yard buffers, a contextual map which includes topography, vegetation associations, buildings, roads, and natural features such as wetlands and streams for a distance of 200 feet beyond the property boundary. The contextual map may be based on aerial photographs and/or topographic maps. The Planning Board may determine to extend the distance up to 500 feet beyond the boundary depending on location, terrain and cultural uses.”
SECTION 4 – TABLES
The following tables are hereby added to and shall be inserted to the end of Chapter 185 entitled “Zoning” of the Code of the Town of Newburgh:
Guideline for
|
Buffer Width |
Suggested Materials per 100 Linear Feet* |
|
30 feet wide |
7 to 10 evergreen trees 15 to 20shrubs 2 canopy or 3 understory trees |
|
40 feet wide |
8 to 12 evergreen trees 2 to 3 canopy or 1 to 4 understory trees 17 to 22 shrubs |
|
50 feet wide |
10 to 15 evergreen trees 2 to 4 canopy or 2 to 5 understory trees 20 to 30 shrubs |
|
60 feet wide |
The Planning Board may require a naturalistic berm. 11 to 18 evergreen trees 2 to 5 canopy or 1 to 5 understory trees 20 to 30 shrubs |
|
85 feet wide** |
The Planning Board may require a naturalistic berm 12 to 18 evergreen trees 3 to 5 canopy trees and a minimum 2 to 5 understory trees 25 to 35 shrubs |
|
100 feet wide** |
The Planning Board may require a naturalistic berm 14 to 20 evergreen trees 3 to 6 canopy and a minimum 3 to 6 understory trees 35 to 55 shrubs |
Note*: Ranges are specified in the Table so that the buffer vegetation may consist of the lower end of the range for one type of tree or shrub and the higher end for another. A landscaping plan which shows only the low end of the range for each type of vegetation will typically not be considered as meeting the design guideline. Buffer design shall also take into account existing vegetation, type of use proposed, and the uses of neighboring properties.
Note**: The suggested materials are required to be planted for the sixty (60) feet closest to the building(s) on the site. The remaining buffer width closest to the property boundary shall remain undisturbed and maintained in its existing vegetative state.
Guidelines for
Buffer Material Installation Table***
|
|
Minimum Size at Installation |
Installed Condition |
|
Canopy Deciduous Trees* |
2 inch caliper; 8 foot height** |
Container or balled and burlapped |
|
Evergreens* |
6 foot height** |
Container or balled and burlapped |
|
Understory Deciduous Trees* |
1 ¼ inch caliper; 5 foot height** |
Container or balled and burlapped |
|
Shrubs* |
2-3 foot height** |
Container |
Notes* All canopy and evergreen trees planted shall be of a species that will achieve a height of at least 20 feet at maturity, unless the Planning Board determines otherwise. All understory deciduous trees planted shall be of a species that will achieve a height of 10 ft. All shrubs planted shall be of a species that will achieve a height of at least 10 feet at maturity.
**Buffer materials shall be designed to achieve a combined height of at least 10 feet within three years of installation, unless the Planning Board determines otherwise. Height will be measured from the elevation of the shared property line. The intent is that the landscape buffer should contain a mixture of plants consisting of trees and shrubs to provide a visual screen in three years of installation that will obscure 80-90 percent of the view from the ground to a height of 10 feet.
***Ground cover of vegetative matter shall be provided throughout the buffer area except in undisturbed natural vegetation areas. Ground cover may be either grass or native, indigenous wildflower meadow mixture. If grass is used, it shall be of a species normally grown as permanent lawns in the vicinity of the Town. Grass areas may be sodded, plugged, sprigged, or seeded. Shrub beds and tree pits shall be mulched.
Table
Illustrative Example:
Yard, Buffer Width and Material Requirements for
Single* Building with 125,000 square feet of Floor Area and under 35 feet high
Adjoining a Residential Zone
Requiring a 100 foot buffer
Property Boundary on Residential Zone
|
40 Foot Wide Buffer Area to be maintained in natural vegetative state ___________________________________________ 60 Foot Wide Buffer Area to be heavily planted with buffer materials
___________________________________________ 50’ | Barrier | 50’ | | ___________________________________ | Paved Fire lane | ______________________________ | Building | (if Barrier provided) ______________________________ | Building | (if Barrier not provided)
|
Yard
40 ft.
100 ft.
150 ft.
185 ft
* Note: No other buildings on the lot within 250 feet of the boundary.
SECTION 5 - VALIDITY
If any word, clause, sentence, paragraph, section or part of this local law or the application thereof to any person or circumstance shall be adjudged by any court of competent jurisdiction to be unconstitutional, illegal or invalid, such judgment shall not affect, impair or invalidate the remainder thereof or the application thereof to any other persons or circumstances but shall be confined in its operation to the clause, sentence, paragraph, word, section or part thereof directly involved in the controversy in which such judgment shall have been rendered. The Town Board hereby declares that it would have enacted this Local Law or the remainder thereof if the invalidity of such provision or application thereof had been apparent.
SECTION 6 - EFFECTIVE DATE
This Local Law shall take effect immediately when it is filed in the Office of the New York State Secretary of State in accordance with Section 27 of the Municipal Home Rule Law