Town of Montgomery, NY
Orange County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Montgomery as amended through L.L. No. 2-2006, adopted 5-18-2006. Subsequent amendments noted where applicable.]
GENERAL REFERENCES

Planning Board and Zoning Board of Appeals — See Ch. 45.

Annexation procedures — See Ch. 75.

Unsafe buildings — See Ch. 90.

Flood damage prevention — See Ch. 116.

Freshwater wetlands — See Ch. 120.

Landmarks and historic districts — See Ch. 157.
Sewers — See Ch. 185.
Subdivision of land — See Ch. 200.
Trailers — See Ch. 215.
Water — See Ch. 229.

§ 235-1
TITLE AND SHORT TITLE 

§ 235-1.1
Title. 

§ 235-1.2
Short title. 

§ 235-2
DECLARATION OF PURPOSE 

§ 235-2.1
Purposes enumerated. 

§ 235-3
DEFINITIONS 

§ 235-3.1
Scope and meaning of certain words and terms. 

§ 235-3.2
Definitions of words and terms. 

§ 235-4
APPLICABILITY OF REGULATIONS 

§ 235-4.1
Provisions to be specific. 

§ 235-4.2
Use regulations. 

§ 235-4.3
Dimensional regulations. 

§ 235-4.4
Grandfathering provisions. 

§ 235-5
DISTRICTS AND BOUNDARIES 

§ 235-5.1
Classes of districts. 

§ 235-5.2
Boundaries of districts on Zoning Map. 

§ 235-6
RESIDENCE AND AGRICULTURE DISTRICTS 

§ 235-6.1
Use and dimensional requirements. 

§ 235-6.2
Residence and agriculture districts: Table of Use Regulations. 

§ 235-6.3
Residence and agriculture districts: Table of Dimensional Regulations. 

§ 235-6.4
Environmental subdistrict regulations. 

§ 235-6.5
Special regulations applicable to certain uses. 

§ 235-7
BUSINESS AND INDUSTRIAL DISTRICTS 

§ 235-7.1
Use and dimensional requirements; number of primary uses permitted. 

§ 235-7.2
Business and industrial districts: Table of Use Regulations. 

§ 235-7.3
Business and industrial districts: Table of Dimensional Regulations. 

§ 235-7.4
Bulk requirements for composting, recycling handling and recovery facilities. 

§ 235-7.5
Environmental subdistrict regulations. 

§ 235-7.6
Special regulations applicable to OP District. 

§ 235-7.7
Special exception uses authorized by Town Board. 

§ 235-7.8
Gateway Overlay District. 

§ 235-8
CLUSTER DEVELOPMENT FOR SUBDIVISIONS 

§ 235-8.1
Definition of “cluster development.” 

§ 235-8.2
Authorization; applicability; purpose. 

§ 235-8.3
Conditions. 

§ 235-9
PROHIBITED USES 

§ 235-9.1
Prohibited uses enumerated. 

§ 235-10
STORMWATER MANAGEMENT AND EROSION AND SEDIMENT CONTROL 

§ 235-10.1
Findings of fact. 

§ 235-10.2
Purpose. 

§ 235-10.3
Applicability; designation of Stormwater Management Officer (SMO). 

§ 235-10.4
Exemptions. 

§ 235-10.5
Definitions. 

§ 235-10.6
Stormwater pollution prevention plans (SWPPP). 

§ 235-10.7
Performance and design criteria. 

§ 235-10.8
Maintenance and repair of stormwater facilities. 

§ 235-10.9
Construction inspections. 

§ 235-10.10
Performance guarantees. 

§ 235-10.11
Enforcement; penalties for offenses. 

§ 235-10.12
Fees for services. 

§ 235-11
SUPPLEMENTAL USE AND DIMENSIONAL REGULATIONS 

§ 235-11.1
Placement of accessory buildings and uses, including garages, off-street parking and truck loading spaces. 

§ 235-11.2
Lot area, lot coverage and lot width. 

§ 235-11.3
Height. 

§ 235-11.4
Yards. 

§ 235-11.5
Fences. 

§ 235-11.6
Spacing between buildings. 

§ 235-11.7
Corner clearance. 

§ 235-11.8
Minimum residential floor area. 

§ 235-11.9
Required transitional yards and screening. 

§ 235-11.10
Private swimming pools. 

§ 235-11.11
Small utility structures. 

§ 235-12
OFF-STREET PARKING AND TRUCK LOADING SPACE 

§ 235-12.1
Parking and loading space required. 

§ 235-12.2
Method of determining off-street parking space requirements. 

§ 235-12.3
Schedule of off-street parking space requirements for residential uses. 

§ 235-12.4
Schedule of off-street parking space requirements for nonresidential uses. 

§ 235-12.5
Off-street truck loading space requirements. 

§ 235-12.6
Supplemental regulations for private garages or off-street parking areas in residential agriculture and residence districts. 

§ 235-12.7
Access driveway requirements. 

§ 235-12.8
Design requirements. 

§ 235-12.9
Exemptions and waivers. 

§ 235-13
SIGN REGULATIONS 

§ 235-13.1
Schedule of permitted and special permitted signs. 

§ 235-13.2
Professional signs and announcement signs. 

§ 235-13.3
Business district identification signs. 

§ 235-13.4
Industrial district identification signs. 

§ 235-13.5
Interchange development district identification signs. 

§ 235-13.6
Real estate or construction signs. 

§ 235-13.7
General provisions. 

§ 235-14
NONCONFORMING USES AND NONCONFORMING BUILDINGS OR STRUCTURES 

§ 235-14.1
Applicability of regulations; filing of certificate of substantial compliance. 

§ 235-14.2
Unlawful buildings, structures, or uses. 

§ 235-14.3
Continuance of nonconformities. 

§ 235-14.4
Extension of use. 

§ 235-14.5
Change of use. 

§ 235-14.6
Abandonment of use. 

§ 235-14.7
Compulsory termination. 

§ 235-15
ZONING BOARD OF APPEALS AND PLANNING BOARD 

§ 235-15.1
Organization, general procedure and jurisdiction. 

§ 235-15.2
Zoning Board of Appeals procedures. 

§ 235-15.3
Appeals on interpretation of local zoning law and map; general jurisdiction of Zoning Board of Appeals. 

§ 235-15.4
Special exception uses (Planning Board). 

§ 235-16
ADMINISTRATION AND ENFORCEMENT 

§ 235-16.1
Interpretation. 

§ 235-16.2
Relation to other provisions of law and to private covenants and agreements. 

§ 235-16.3
Enforcement. 

§ 235-16.4
Building permits. 

§ 235-16.5
Required site plan procedure and standards. 

§ 235-16.6
Completion of buildings for which permits have been issued. 

§ 235-16.7
Temporary building permits; temporary certificates of occupancy. 

§ 235-16.8
Certificates of occupancy. 

§ 235-16.9
Fees. 

§ 235-16.10
Violations, penalties and remedies. 

§ 235-16.11
Amendments. 

§ 235-17
MISCELLANEOUS PROVISIONS 

§ 235-17.1
Severability. 

§ 235-17.2
Repealer. 

§ 235-17.3
When effective. 

235a Res and Ag Table of Use Regs235b Res and Ag Table of Dimens Regs235c Bus and Ind Table of Use Regs235d Bus and Ind Table of Dimens Regs235e Bulk Req for Comp etc235f Historic Landmarks235g Fee Schedule235h Nonresidential Design Guidelines

This chapter is a local law regulating and restricting the height, number of stories and size of buildings and other structures, the percentage of a lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes, in the Town of Montgomery outside the limits of any incorporated village; and for said purposes dividing the Town outside such limits into districts; and providing fines and penalties for the violation of its provisions.

This chapter shall be known and may be cited as "The Town of Montgomery Zoning Law of 1971 as Amended."

This Zoning Law is adopted for the purpose of promoting the health, safety, morals and the general welfare of the community and in furtherance of the following related and more specific objectives:

A. 

To guide and regulate the orderly growth, development and redevelopment of the municipality in accordance with a comprehensive plan and with long-term objectives, principles and standards deemed beneficial to the interests and welfare of the people.

B. 

To protect the established character and the social and economic well-being of both private and public property.

C. 

To promote, in the public interest, the utilization of land for the purposes for which it is most appropriate.

D. 

To secure safety from fire, panic, and other dangers, and to provide adequate light, air and convenient access.

E. 

To prevent overcrowding of land or buildings, and to avoid undue concentration of population.

F. 

To lessen and, where possible, to prevent traffic congestion on public streets and highways.

G. 

To gradually eliminate nonconforming uses.

H. 

To conserve the value of buildings and to enhance the value of land throughout the municipality.

A. 

Unless the context clearly indicates the contrary, words used in the present tense include the future, the singular number includes the plural, and the plural the singular.

B. 

The word "person" includes a profit or nonprofit corporation, company, partnership or individual. The masculine shall include the feminine and the feminine shall include the masculine.

C. 

The word "shall" is mandatory and not directory; the word "may" is permissive.

D. 

The word "lot" includes the word "plot" and the word "land."

E. 

The word "structure" includes the word "building."

F. 

The word "use" refers to any purpose for which a lot or land or part thereof is arranged, intended or designed to be used, occupied, maintained, made available or offered for use; or erected, reconstructed, altered, enlarged, moved or rebuilt with the intention or design of using the same.

G. 

The word "used" refers to the actual fact that a lot or land, building or structure, or part thereof, is being occupied or maintained for a particular use.

H. 

All references to Part 360, and subparts thereof, shall mean 6 NYCRR Part 360, Solid Waste Management Facilities, effective October 9, 1993, and further revisions.

As used in this chapter, the following terms shall have the meanings indicated:

ACCESSORY USE, BUILDING OR STRUCTURE
A subordinate use, building or structure customarily incidental to and located on the same lot occupied by the main use, building or structure. The term "accessory building" may include a private garage, a garden shed, a private playhouse, and a private greenhouse. Accessory buildings or structures consisting of 144 square feet or less shall be deemed "minor accessory structures."
ALTERATION
As applied to a building or structure, a change or rearrangement in the structural parts or in the existing facilities; or an enlargement, whether by extending on a side or by increasing in height or moving from one location or position to another. The term "alter" in its various modes and tenses and its particular form refers to the making of an alteration.
BASEMENT
A story partly underground and having less than 1/2 of its clear height below the finished grade.
BILLBOARD
A sign which directs attention to a business, commodity, service, entertainment or attraction sold, offered or existing elsewhere than upon the same lot where such sign is displayed, or only incidentally sold, offered or existing upon such lot.
BOARD
The Zoning Board of Appeals or the Planning Board as the context requires.
BUILDING
A structure with a roof supported by columns or walls and having a horizontal area of more than 50 square feet.
BUILDING INSPECTOR
The official building inspector of the municipality. The term "Building Inspector" shall include the terms "Code Enforcement Official" and "Zoning Law Administrator."
CAMPGROUND
Any parcel of land under single ownership with or without accommodations for temporary living purposes, but containing two or more paved or unpaved areas to be used for the parking of recreational vehicles, which includes travel trailers, the erection of a tent, or accommodation of other forms of temporary, portable or movable shelter.
CELLAR
A story partly underground and having 1/2 or more of its clear height below the finished grade.
CLUB, COUNTRY
A club for golfing, hunting, fishing, horseback riding or similar sports.
CLUB, MEMBERSHIP, NONPROFIT
The premises and buildings used by a local chapter holding a valid charter from an international, national or state organization or by a bona fide local civic association catering exclusively to members and their guests primarily for a patriotic, fraternal, benevolent, educational, religious or political purpose. The club shall not be used in whole or in part for the conduct of any business or enterprise for profit, but this shall not be construed as preventing the utilization of a club for benefits or performances for a recognized charity or for the meeting of other organizations, or for educational and cultural purposes.
CLUSTER DEVELOPMENT
A subdivision plat or plats, approved pursuant to § 235-8, in which the applicable zoning law is modified to provide an alternative method for the layout, configuration and design of lots, buildings, structures, roads, utility lines and other infrastructure, parks and landscaping in order to preserve the natural and scenic qualities of open lands.
COMPOSTING FACILITY
A facility which produces compost from the organic fraction of leaves, wood chips, grass clippings, pine needles, plants, stumps, tree trunks, yard waste, branches, brush, food and manure. This definition specifically excludes inorganic material and animal products and by-products, sewer waste, solid waste (other than those above) or sludge. Said facility must conform to the requirements of Part 360, at a minimum.
CONSTRUCTION AND DEMOLITION (C&D) DEBRIS
Uncontaminated solid waste resulting from the construction, remodeling, repair and demolition of utilities, structures and roads; and uncontaminated solid waste resulting from land clearing. Such waste includes, but is not limited to, bricks, concrete and other masonry materials, soil, rock, wood (including painted, treated and coated wood and wood products), land-clearing debris, wall coverings, plaster, drywall, plumbing fixtures, non-asbestos insulation, roofing shingles and other roof coverings, asphaltic pavement, glass, plastics that are not sealed in a manner that conceals other wastes, empty buckets 10 gallons or less in size and having no more than one inch of residue remaining on the bottom, electrical wiring and components containing no hazardous liquids, and pipe and metals that are incidental to any of the above. Solid waste that is not C&D debris (even if resulting from the construction, remodeling, repair and demolition of utilities, structures and roads and land clearing) includes, but is not limited to, asbestos waste, garbage, corrugated container board, electrical fixtures containing hazardous materials such as fluorescent lamps, ballasts or transformers, carpeting, furniture, appliances, tires, drum containers greater than 10 gallons in size, any containers having more than one inch of residue remaining on the bottom and fuel tanks. Specifically excluded from the definition of C&D debris is solid waste (including what otherwise would be construction and demolition debris) resulting from any processing technique, other than that employed at a Town-approved C&D debris processing facility that renders individual waste components unrecognizable, such as pulverizing or shredding.
COURT
An open, unoccupied space other than a yard, on the same lot with a building. An offset to a court shall be deemed a separate inner court for the purpose of determining its least dimension, its area, and the least dimension and area of the court to which it is contiguous.
COURT, DEPTH OF
The maximum horizontal dimension at right angles to the width.
COURT, HEIGHT OF
The greatest vertical distance measured from the lowest level of such court up to the roof of the building.
COURT, INNER
Any court which is not an outer court.
COURT, OUTER
A court extending to a street, front yard, or rear yard.
COURT, WIDTH OF
The horizontal dimension parallel to the principal open side in the case of an outer court; and the least horizontal dimension in the case of an inner court.
CUSTOM WORK, SHOP FOR
A business premises used for the making of clothing, millinery, shoes or other articles to individual order and measure, for sale at retail on the premises only, not including the manufacture of "ready-to-wear" or standardized products.
DAY CAMP
A building or structure, together with its lot and its accessory uses, buildings and structures, used as an organized recreational facility for five or more enrolled children other than the children of the resident family, which does not provide customary commercial public recreation features such as Ferris wheels or roller coasters, and does not furnish sleeping quarters except for the resident family.
DUMP
A parcel of land or part thereof used primarily for the disposal by abandonment, dumping, burial, burning or any other means and for whatever purpose of garbage, sewage, trash, refuse, junk, discarded machinery, vehicles, or parts thereof, or waste material of any kind.
DWELLING
A building arranged, intended or designed to be occupied by one or more families living independently of each other on the premises.
DWELLING, ACCESSORY
A secondary subordinate dwelling with not more than one bedroom designed primarily for occupancy by one or two persons, attached to or part of a single-family residence or in a detached structure as regulated in § 235-6.5B.
DWELLING, MULTIPLE
A building or portion thereof containing more than two dwelling units.
DWELLING, ONE-FAMILY SEMIDETACHED
A building constructed for the use of two families, having one side yard and one wall for each unit and permitting separate ownership for each unit.
DWELLING UNIT
One or more rooms with provisions for cooking, living, sanitary, and sleeping facilities arranged for the use of one family.
FAMILY
One or more persons living together as a single nonprofit housekeeping unit, using all rooms and housekeeping facilities of a dwelling unit in common. Any such number of persons shall not be deemed to be part of one family, but shall be considered a separate family if any one of such persons does not have lawful access to common rooms and housekeeping facilities of said dwelling unit or if any one or more of such persons leases or rents any separate portion of such dwelling unit from any other person, except that up to two additional persons may room or board with a family, as long as they share the use of all common rooms and housekeeping facilities.
FILLING STATION
A building or lot or part thereof supplying or selling gasoline or other equivalent fuel for motor vehicles at retail direct from pumps and storage tanks. A filling station may, but only where specifically permitted in the Table of Use Regulations for Business and Industrial Districts,
Editor's Note: The Table of Use Regulations for Business and Industrial Districts is included at the end of this chapter.
include accessory facilities for rendering service for motor vehicles, such as lubrication, washing and minor repairs. A filling station may be self-service where customers pump their own fuels or may have an attendant that pumps fuels and it may house a convenience retail store of up to 1,000 square feet. A filling station shall not be deemed to include a liquefied petroleum filling station unless specifically so stated. With the exception of a full-service truckstop pursuant to § 235-15.4C(20), diesel fuel sales shall not exceed 15% of total fuel sales for any thirty-day period.
FILLING STATION, LIQUEFIED PETROLEUM GAS (LPG)
A parcel of land upon which a building and/or storage tank for LPG is located and used to supply gas at retail to motor vehicles and portable gas storage tanks brought to the site. Such a filling station may provide accessory facilities and services for motor vehicles, equipment utilizing LPG and LPG tanks.
GARAGE, PARKING
A building, not a private garage, used for the storage of automobiles or trucks, and not used for making repairs thereto.
GARAGE, PRIVATE
An enclosed space for the storage of one or more motor vehicles, provided that no business, occupation or service is conducted for profit therein and no space for more than one car is leased to a nonresident of the premises.
GARAGE, REPAIR
A building other than a private or a parking garage used for adjustment, painting, replacement of parts or other repair of motor vehicles, or parts thereof, whether or not accessory or incidental to another use.
GARBAGE; SOLID WASTE
Kitchen and household refuse and table scraps, fruit and vegetable parings, decaying vegetable, animal and fruit matter and fallen fruit and other perishable waste resulting from the handling, selling, preparation, cooking or storing of foods, including soiled paper. “Garbage” does not include yard waste.
HEIGHT OF STRUCTURE OR BUILDING
The vertical distance measured from the average elevation of the finished grade along the side of the structure fronting on the nearest street to the highest point of such structure.
HOME OCCUPATION
Any gainful occupation customarily conducted within a single-family dwelling by the residents thereof that is clearly secondary to the residential use, and that does not change the character of the structure as a residence. Said activity shall not occupy more than 1/2 of the ground floor area of the dwelling or its equivalent elsewhere in the dwelling if so used, and further provided that there shall be no external evidence other than an announcement sign and that no mechanical or electrical equipment shall be used except customary household equipment. However, home occupations shall not be construed to include such uses as the following: occupations which employ persons other than residents who work on the premises, a clinic or hospital, restaurant, antique dealer, kennel or breeding kennel (except where allowed as a special exception use).
HOME PROFESSIONAL OFFICE
The office or studio of a resident physician, surgeon, dentist, or other person licensed by the State of New York to practice a healing art; lawyer, architect, artist, engineer, real estate broker or salesman, insurance broker or agent, or teacher as herein restricted; provided that not more than two persons are employed who are not members of the family, and that such office shall be in the main building and shall not occupy more than the equivalent of 1/2 of the area of one floor of said building. For the purposes of this definition, a "teacher" shall be restricted to a person giving individual instruction in academic or scientific subjects to a single pupil at a time. A home professional office shall not include the office of any person professionally engaged in the purchase or sale of economic goods. Dancing instruction, band instrument or piano or voice instruction, tea rooms, tourist homes, beauty parlors, barber shops, hairdressing and manicuring establishments, convalescent homes, mortuary establishments, and stores, trades, or businesses of any kind not herein excepted shall not be deemed to be home professional offices. The home professional office of a physician shall not include a biological or other medical testing laboratory.
HOTEL
A building or part thereof which has a common entrance, common heating system, and general dining room, and which contains seven or more living and sleeping rooms designed to be occupied by individuals or groups of individuals for compensation. A hotel shall not provide apartment dwelling units.
HOUSE TRAILER
A movable single-family dwelling originally equipped with or having a vehicular chassis but lacking one or more of the following mechanical systems and equipment: plumbing, heating, electrical, cooking and refrigeration. See “mobile home.”
JUNKYARD
Any land or structure or part thereof exceeding 300 square feet in area used for collecting, storage or sale of wastepaper, rags, scrap metal or other scrap or discarded material; or for the collecting, dismantling, storage or salvage of machinery or vehicles not in running condition, or for sale of the parts thereof.
KENNEL
The maintenance or housing of more than four dogs six months of age or older on one lot.
LOT
A parcel of land occupied or used by one main building with its accessory building and the required open spaces.
LOT AREA
The total horizontal area included within lot lines, exclusive of wetlands as defined below and exclusive of one-hundred-year floodplains as depicted on maps prepared by the Federal Emergency Management Agency (FEMA), as those maps exist or as they may be amended, and exclusive of lands encumbered by easements of any type other than individual utility service lines servicing only structures on a lot.
LOT, CORNER
A lot at the junction of and fronting on two or more intersecting streets.
LOT COVERAGE
The percentage of the area of the lot covered by a building or buildings.
LOT, INTERIOR
Any lot other than a corner lot.
LOT LINE
Any boundary of a lot. Any lot line not a rear lot line nor a front lot line shall be deemed a side lot line.
LOT LINE, FRONT
The street right-of-way line at the front of a lot. A front lot line and required front yard for property facing two or more streets shall be all of the lines and all of the yards fronting on said streets. The lot line and yard opposite one of the front lot lines shall be the rear lot line and rear yard. For a lot that extends behind another lot the front yard shall be measured from both the public street and, in addition thereto, from the common lot line between the front and rear lots.
LOT LINE, REAR
The lot line opposite to the front lot line.
LOT, THROUGH
A lot extending from one street to another.
LOT WIDTH
The dimension measured from side lot line to side lot line along a line parallel to the street line at the required minimum front yard depth, or at the proposed building setback line established at the time of subdivision approval, whichever is greater.
MOBILE HOME
A movable single-family dwelling originally equipped with or having a vehicular chassis and provided with all of the following mechanical systems and equipment: plumbing, heating, electrical cooking and refrigeration. See “house trailer.”
MOBILE HOME COURT
A residential land use designed for the location of one or more mobile homes in designated mobile home spaces and including appurtenant facilities and accessory services for residents only.
MOBILE HOME OR HOUSE TRAILER SALES OFFICE AND/OR LOT
A use of land and improvements for the purpose of displaying, storing and renting or selling mobile homes or house trailers, but not including provision for mechanical or other services for these dwelling uses.
MOTEL
A building or group of buildings used as individual sleeping or dwelling units and designed primarily for transient automobile travelers. The term "motel" includes buildings designed as tourist courts, motor lodges, auto courts and other similar appellations, but shall not be construed to include house trailers or mobile homes. A motel shall not provide dwelling units.
NONCONFORMING STRUCTURE
A structure lawfully existing at the effective date of this chapter, or any amendment thereto affecting such structure, which does not conform to the Table of Dimensional Regulations
Editor's Note: The Tables of Dimensional Regulations are included at the end of this chapter.
of this chapter for the district in which it is situated, irrespective of the use to which such structure is put.
NONCONFORMING USE
Any use of a building, structure, lot or land, or part thereof, lawfully existing at the effective date of this chapter or any amendment thereto affecting such use, which does not conform to the Table of Use Regulations
Editor's Note: The Tables of Use Regulations are included at the end of this chapter.
of this chapter for the district in which it is situated.
NON-NUISANCE INDUSTRY
Any industry which is not detrimental to the environment in which it is located by reason of the emission of smoke, noise, odor, dust, vibration or excessive light, beyond the limits of its lot, or by reason of generating excessive traffic with attendant hazards and which does not include any outdoor processing of materials, or open accessory storage yard unless completely enclosed by a solid wall or fence not less than six feet in height.
NON-NUISANCE INDUSTRY, LIMITED
Is that non-nuisance industry which: employs four or fewer employees, is expected by the Planning Board to generate little or no heavy truck traffic, contains no outdoor storage yards, and is situated in a building or portion of a building of not more than 2,500 square feet in floor area.
NURSERY SCHOOL
See “day camp.”
PARKING AREA
A lot or part thereof used for the storage or parking of motor vehicles with or without the payment of rent or charges in money and/or other consideration.
PARKING SPACE
A stall or berth which is arranged and intended for the parking of one motor vehicle in a garage or parking area.
PERMITTED USE
A specific main use of a building, structure, lot or land, or part thereof which this chapter provided for in a particular district as a matter of right subject to the requirement of site plan approval where elsewhere required in this chapter and/or other applicable law. Any use which is not listed as a permitted, special exception or accessory use shall be considered a prohibited use.
POST-COLLECTION SEPARATION FACILITY
A facility which separates recyclable from solid waste, other than source-separated recyclable or construction and demolition debris. These facilities shall be regulated the same as recyclable handling and recovery facilities. These facilities must meet the requirements of 6 NYCRR Part 360-11, Transfer Stations, as such requirements now exist or may be amended hereafter.
PROHIBITED USE
A use of a building or structure, lot or land, or part thereof, which is not listed as a permitted, special exception, or accessory use as well as those uses listed as prohibited uses in § 235-9.
REAR DWELLING
A dwelling located on the same lot and to the rear of the main building for which the lot is used.
RECREATIONAL VEHICLE
A movable unit designed for short-term occupancy and frequent travel, equipped with a chassis and one or more of the following mechanical systems and equipment: plumbing, heating, electrical, cooking and refrigeration.
RECYCLABLE HANDLING AND RECOVERY FACILITY
A solid waste processing facility, other than collection and transfer vehicles, at which nonputrescible recyclables which have been previously separated (commingled or source-separated recyclables) from the solid waste stream are processed or prepared to marketable quality for reuse and/or recycling. This definition does not include retail operations that accept materials for recycling from the general public as merely a service or convenience that is incidental to the primary business being conducted on that property (e.g., waste oil collection centers at an automotive parts store).
RECYCLABLE MATERIALS
Any material designated, from time to time, which, under any applicable law or regulation, is not hazardous and which is separated from the waste stream and held for its material recycling or reuse value. It shall be limited to the following materials only: newsprint, corrugated cardboard, magazines, office paper, kraft paper, phone books, miscellaneous paper, glass, aluminum, tin/steel cans, white goods, scrap metal, plastics, textiles, used oil, lead acid batteries and dry-cell batteries. All other materials are specifically excluded from this definition.
RESEARCH INSTITUTE OR LABORATORY
A building for experimentation in pure or applied research, design, development and production of prototype machines or devices or of new products and uses accessory thereto. With respect to the application of this chapter, such research institute or laboratory shall meet the standards of a non-nuisance industry.
RETAIL INDUSTRY
A non-nuisance industry, as elsewhere defined in this chapter, that custom fabricates from finished materials which were not manufactured on the premises and which includes a retail store as a principal use in a designated area with separate direct access from the exterior in which components either manufactured or utilized in connection with the finished product are offered for sale to the public.
ROADSIDE MARKET
A temporary use of land, structure or building on a farm by the farmer as a sale outlet primarily for produce grown on his farm.
SENIOR ASSISTED-CARE FACILITY
Individual dwelling units, or partial units, designed and constructed primarily for seniors and subject to management or legal restrictions that require all units and partial units to be occupied by persons 60 years of age or older providing long-term residence, centralized cooking and common dining, housekeeping and personal care and supervision as needed to five or more adults, unrelated to the operator, who may or may not require some limited, continuing medical care. To allow flexibility, not more than 10% of the units may be occupied by persons under 60 years of age.
SHOPPING CENTER
One or more buildings situated on a minimum of two acres containing retail stores, services, offices, eating, drinking, or entertainment establishments and accompanying on-site parking, loading, and vehicular and pedestrian circulation facilities, in accordance with a comprehensive design.
SIGN
Any kind of billboard, sign board, temporary or permanent, or other shape or device or display used as an advertisement, announcement, or direction, including any text, symbol, lights, marks, letters or figures painted thereon or painted on or incorporated in the composition of an exterior surface of a building or structure.
SIGN, BUSINESS
A temporary or permanent sign which directs attention to a business or profession conducted upon the property.
SIGN, PROFESSIONAL OR ANNOUNCEMENT
A temporary or permanent sign which directs attention to a home occupation, a home professional office, or public or semipublic building.
SIGN, REAL ESTATE OR CONSTRUCTION
A sign advertising land or improvements thereto, or describing construction activity or a firm doing work related to construction, on the premises on which the sign is located.
SIGN, TEMPORARY
A temporary sign which directs attention to a special activity or entertainment, or one which indicates the location of a real estate subdivision.
SOURCE SEPARATION
The segregation of recyclable materials from solid waste to a point of generation for separation, collection, sale or other disposition.
SPECIAL EXCEPTION USE
A use in one or more districts, for which the Planning Board may grant a permit, pursuant to the provisions of § 235-15.4.
STREET
Any federal, state, county or Town road or any street shown upon a subdivision plat filing in the County Clerk's office.
STREET, COLLECTOR
A street which carries traffic from minor streets to the major system of arterial streets and highways, including the principal entrance streets of large residential developments.
STREET LINE
The dividing line between a lot and a street right-of-way.
STREET, MAJOR OR ARTERIAL
A street which serves or is designed to serve heavy flows of traffic and which is used primarily as a route for traffic between communities and/or other heavy traffic between communities and/or other heavy traffic generating areas.
STREET, MARGINAL OR SERVICE
A streets which is parallel to and adjacent to major or arterial streets and highways, and which serves to provide access to abutting properties and separation from through traffic.
STRUCTURE
Anything constructed or erected on or under the ground or upon another structure or building.
SWIMMING POOL
A receptacle for water or an artificial pool of water having a depth at any point of more than 18 inches and a surface area of greater than 100 square feet designed or intended for the purpose of bathing or swimming and including all appurtenant equipment, and having more than 1/2 of its volume below the surface of the surrounding terrain.
TIRES
Tires from cars, trucks or other motor vehicles and their casings, but shall not include rims.
TRANSFER STATION
A solid waste management facility, other than a recyclable handling and recovery facility, used oil facility, or a construction and demolition debris processing facility, where solid waste is received for the purpose of subsequent transfer to another solid waste management facility for further processing, treating, transfer or disposal. Transfer of solid waste from vehicle to vehicle for the purpose of consolidating loads, as part of the initial collection process, is not considered a transfer station, provided the transfer activity occurs along the collection route where the point of transfer changes from day to day. Transfer of leakproof, closed modular containers of solid waste from vehicle to vehicle, including truck to train, for the purpose of consolidating loads for shipment to an authorized disposal or treatment facility, is not considered a transfer station, provided the contents of each container remain in their closed container during the transfer between vehicles; storage remains incidental to transport at the location where the containers are consolidated; containers are maintained in a safe, nuisance-free (e.g., dust, odor, noise, etc.) manner; and the transfer location is under the ownership or control of the transporter.
TRUCK TERMINAL
A facility where goods owned by others are being transported or transferred by truck and where trucks, owned by the terminal or affiliate, are leased, repaired, serviced, maintained and/or temporarily stored.
VARIANCE
A modification of the regulations of this chapter, granted pursuant to the provisions of §§ 235-15.1 through 235-15.3.
VARIANCE, AREA
The authorization by the Zoning Board of Appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.
VARIANCE, USE
The authorization by the Zoning Board of Appeals for the use of land for a purpose which is not allowed or is otherwise prohibited by the applicable zoning regulations.
WALL
A structure of wood, stone, or other materials or combination thereof intended for defense, security, screening or enclosure or for the retention of earth, stone, fill or other materials as in the case of retaining walls or bulkheads.
WAREHOUSE
A facility containing goods manufactured, used, transferred, stored, transported or sold by the owner or lessor of the warehouse. A warehouse may be attached to or accessory to an office, industrial building or use or a commercial use or may be a separate or principal use of a property subject to the requirements of this chapter. Warehouse facilities shall not provide truck maintenance service or repair facilities unless they are also part of a truck terminal or truck stop.
WATER PRODUCTION SUPPLY AND REMOVAL
The taking of water for the purpose of removal from the production site in excess of 20,000 gallons per any day. Agricultural uses and irrigation uses are not deemed to be water production, supply and removal for the purposes of this chapter. Additionally, the taking of water by fire-fighting personnel under emergency or for training purposes or the taking of water by municipal water districts, likewise, will not be subject to the regulations herein set forth in this chapter.
WETLANDS
Lands delineated by the New York State Department of Environmental Conservation (DEC) as New York State wetlands, but exclusive of the one-hundred-foot buffer and, also, lands deemed to be federal wetlands by the United States Army Corps of Engineers (USACOE) or, in lieu thereof, at the sole discretion of the Planning Board, a federal wetland delineation acceptable to the Planning Board.
WOOD-CHIPPING FACILITY
A facility which produces wood chips or mulch from chipping and/or grinding of the raw material for the express purpose of producing wood by-products for use as landscaping material or for other uses. This definition does not include the production of compost caused by the organic decay of the wood materials processed at this facility as such operations are defined as a "composting facility" under these regulations.
YARD, FRONT
An open unoccupied space on the same lot with a building situated between the nearest roofed portion of the building and the front line of the lot and extending from side lot line to side lot line. A front lot line and required front yard for property facing two or more streets shall be all the lines and all of the yards fronting on said street. The lot line and yard opposite one of the front lot lines shall be the rear lot line and rear yard. For a lot that extends behind another lot, the front yard shall be measured from both the public street and, in addition thereto, from the common lot line between the front and rear lot. Notwithstanding the above, the term “required front yard” shall be as defined in the Table of Dimensional Regulations for Residence and Agricultural Districts, Row 5, and the Table of Dimensional Regulations for Business and Industrial Districts, Row 6.
Editor's Note: The Tables of Dimensional Regulations are included at the end of this chapter.
YARD, REAR
A space on the same lot with a building situated between the nearest roofed portion of the building and the rear lot line of the lot and extending from side lot line to side lot line. Notwithstanding the above, the term “required rear yard” shall be as defined in the Table of Dimensional Regulations for Residence and Agricultural Districts, Row 5, and the Table of Dimensional Regulations for Business and Industrial Districts, Row 6.
Editor's Note: The Tables of Dimensional Regulations are included at the end of this chapter.
YARD, SIDE
An open, unoccupied space on the same lot with a building situated between the nearest roofed portion of the building or of any accessory building and the side lot line of the lot, and extending through from the front yard or from the front lot line, where no front yard exists, to the rear yard or to the rear lot line where no rear yard exists. Notwithstanding the above, the term “required side yard” shall be as defined in the Table of Dimensional Regulations for Residence and Agricultural Districts, Row 5, and the Table of Dimensional Regulations for Business and Industrial Districts, Row 6.
Editor's Note: The Tables of Dimensional Regulations are included at the end of this chapter.
YARD WASTE
Grass clippings, leaves, cuttings and other debris from shrubs, hedges, tree branches less than three inches in diameter and four feet in length, and other vegetation. Garbage, recyclable material, construction and demolition debris, sod and soil shall not be construed to include yard waste.
ZONING DISTRICTS
Districts provided for elsewhere in the Zoning Law of the Town of Montgomery.

The provisions of this chapter shall be deemed to be specific. Those matters for which there are no specific provisions in this chapter shall be deemed to be prohibited.

A. 

Except as hereinafter provided, no building or structure or part thereof and no lot or land or part thereof shall hereafter be used except for a purpose specifically permitted by the provisions of the Table of Use Regulations

Editor's Note: The Tables of Use Regulations are included at the end of this chapter.
for the district in which such building or structure, lot or land is located on the Zoning Map.

B. 

Any lawful use that does not conform to the use regulations of this chapter shall be deemed a nonconforming use. (See § 235-14.)

C. 

A special exception use authorized by the Planning Board shall be deemed a conforming use.

D. 

A use authorized by a variance from the use regulations of this chapter granted by the Zoning Board of Appeals shall be deemed a nonconforming use.

A. 

Except as hereinafter provided, no building or structure or part thereof shall hereafter be erected, structurally altered, enlarged, rebuilt, or moved except in conformity with the provisions of the Table of Dimensional Regulations

Editor's Note: The Tables of Dimensional Regulations are included at the end of this chapter.
for the district in which such building or structure is located on the Zoning Map.

B. 

Any lawful existing building or structure that does not conform to such dimensional regulations of this chapter shall be deemed a nonconforming building or structure, irrespective of the use to which it is put. (See § 235-14.)

C. 

A building or structure or part thereof authorized as a variance from the dimensional regulations of this chapter, granted by the Zoning Board of Appeals, shall be deemed a nonconforming building or structure or part thereof.

The following provisions are "grandfathered":

A. 

Existing approved residential lots or lots validly of record with frontage on public highways or contained on certain subdivision plats filed with the County Clerk for lands rezoned to the RA-.5 Zoning District in 1989 (Local Law #4 of 1989). All existing approved residential lots or lots validly of record in the Town of Montgomery as of July 10, 1989, which were rezoned to the RA-.5 Zoning District in 1989 but contained the requisite frontage on any existing state, county or Town highway as of July 10, 1989, or those lots which are included on a filed subdivision plat previously filed with the County Clerk pursuant to the interim grandfather provisions of Section III of Local Law #4 of 1989 may be developed and improved in accord with the zoning lot area and bulk requirements of the Town of Montgomery in effect immediately prior to the adoption of Local Law #4 of 1989. Notwithstanding the above, all Zoning Law amendments subsequent to Local Law #4 of 1989 shall apply to all such lots. Additionally, no such lot shall have been nor shall be further subdivided to create any new residential lots that do not meet the minimum requirements imposed by this chapter as existing now or as, from time to time, amended, unless the subdivision plan is an approved cluster plan in accord with the Zoning Law existing at the time of the filing of the clustered subdivision plan with the Orange County Clerk.

B. 

Local Law #2 of 2002, as amended by Local Law #2 of 2003.

(1) 

Proposed lots reflected on any pending residential subdivision application that has received either a preliminary approval or a negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) as of April 15, 2002; provided, however, such lots must appear on a final, approved subdivision map and such map must be filed with the Orange County Clerk not later than October 4, 2003. If such map is not filed by October 4, 2003, then the provisions of Section III-C of Local Law #2 of 2002 shall apply to all such lots. Section III-C requires a full-acre, two-acre, half-acre, three-eighths-acre, five-eighths-acre or three-quarter-acre lot size, as the case may be, for the RA-.5, RA-1, RA-2 and RA-3 Districts as depicted in the Table of Dimensional Regulations for the Residence and Agricultural Districts.

Editor's Note: The Table of Dimensional Regulations for the Residence and Agricultural Districts is included at the end of this chapter.

(2) 

Approved lots which do not meet the minimum lot sizes set forth in Section III-C of Local Law #2 of 2002, but are depicted on a subdivision map filed with the Orange County Clerk as of the effective date of that local law;

(3) 

Existing lawfully created lots of record which do not meet the minimum lot sizes set forth in Section III-C of Local Law #2 of 2002, but were created prior to the requirement that any such lots be approved by the Town of Montgomery Planning Board.

C. 

Existing lawfully created lots of record which continue to be grandfathered under the provisions of this section.

(1) 

Local Law #4 of 2004.

(a) 

All existing lots validly created per the applicable zoning laws of the Town or those lots created prior to the enactment of zoning laws and amended zoning laws in the Town, and as those lots exist on the official tax maps of the Town of Montgomery as of September 23, 2004, may be developed in accordance with the zoning laws in effect as of April 1, 2002. Likewise, any proposed lot depicted on a proposed subdivision plat that has received a negative declaration from the Town of Montgomery Planning Board pursuant to SEQRA as of the effective date of this local law may be developed in accord with the zoning laws in effect as of April 1, 2002.

(b) 

Notwithstanding anything in this Subsection C(1)(a) to the contrary, all zoning law amendments enacted subsequent to this Local Law #4 of 2004 shall apply to all lots unless the Town Board specifically enacts further exceptions. Additionally, no such lot shall have been nor shall be further subdivided to create any new lots that do not meet the minimum requirements imposed by this local law, as herein amended, unless the subdivision plan is an approved cluster plan in accord with the zoning law existing at the time of the filing of the clustered subdivision plan with the Orange County Clerk.

For the purposes of this chapter, the Town of Montgomery is hereby divided into 14 classes of districts as follows:

A. 

Residence and agriculture districts.

RA-CE District (residential agricultural - conservation easement)
RA-.5 District (residential agriculture - one-family residences)
RA-2 District (residential agriculture — one- and two-family residences)
RA-2/PAC District (planned adult community)
R-MHC District (mobile home court)
B. 

Business and industrial districts.

B-1 District (neighborhood business)
B-4 District (highway commercial)
OB District (office business)
OP District (office park)
ID District (interchange commercial and industry)
I-1 District (industrial park)
I-2 District (industrial park, major access)
I-3 District (general industry)
I-4 District (general industry-A)
C. 

Environmental subdistricts.

FP Floodplain District
A Airport District
The FP or A District is contained within and may overlap any districts established by this chapter.
D. 

Overlay districts.

Gateway Overlay District
Water Supply Overlay Zone
A. 

The boundaries of each of the districts listed in § 235-5.1 are hereby established as shown upon the duly adopted Zoning Map which accompanies this chapter, and which, with all notations, references and other matters shown thereon, is hereby declared a part of this chapter.

B. 

The district boundary lines, unless shown otherwise, are intended generally to follow street center lines, railroad right-of-way lines, lot lines, boundaries of subdivisions or municipal boundary lines, all as shown on the Zoning Map. Where a district boundary line does not follow such a line, but is shown parallel to such a line on the Zoning Map, the distance between the parallel lines shall be as dimensioned on the Zoning Map. Such dimensions shall be construed to read from the outside edge of all rights-of-way rather than from their center lines.

C. 

Where the street layout actually on the ground varies from the street layout as shown on the Zoning Map, the designation shown on the mapped streets shall be applied in such a way as to carry out the Building Inspector's judgment as to the purpose and intent of the Zoning Map for the particular area in question.

D. 

When the location of a district boundary line cannot be otherwise determined, the determination thereof shall be made by the Building Inspector by scaling the distance on the Zoning Map from a line of known location to such district boundary line.

E. 

In the case of uncertainty as to the true location of a district boundary line in a particular instance, an appeal may be taken to the Zoning Board of Appeals as provided in § 235-15.3.

F. 

When a district boundary line divides a lot at the effective date of this chapter or any subsequent amendment thereto, the applicant may apply to the Zoning Board of Appeals for a variance or variances to extend a proposed use from one district into the adjacent district subject to all of the criteria for variances as set forth in this chapter and/or other applicable law. Nothing herein contained shall imply that such variance application should or must be granted.

G. 

The District Boundary descriptions contained in the zoning ordinances adopted prior to 1971 and shown on the Zoning Map that formed a part thereof, both as amended, revised and reenacted from time to time, are hereby superseded in their entirety by the provisions of § 235-5 and by the Zoning Map which forms a part of this chapter.

Within any Residential Agriculture District or any Residence District, a building, structure or lot shall only be used for one of the uses indicated in § 235-6.2, Table of Use Regulations, for the specific district in which it is located on the Zoning Map, and in accordance with the particular classification of that use in that district. Further, any such building, structure or lot shall only be utilized in conformance with the provisions of § 235-6.3, Table of Dimensional Regulations. In addition, such use shall also comply with all other applicable provisions of this section.

See the Table of Use Regulations for Residence and Agricultural Districts included at the end of this chapter.

See the Table of Dimensional Regulations for Residence and Agricultural Districts included at the end of this chapter.

Within the borders of the FP Floodplain and A Airport Zones all uses shall be permitted as indicated for the districts in which the uses are located as shown in §§ 235-6 and 235-7 except as follows: Whenever a request for a building permit is made for any use within the FP or A District, the application, at the discretion of the Building Inspector, shall include a site survey with accurate USCGS elevations of all construction, and the Building Inspector shall refuse to issue a building permit if he determines there will be a danger of flooding or danger to aircraft. See Chapter 116, Flood Damage Prevention, of the Code of the Town of Montgomery, or any amendments thereto, for additional requirements for development and/or disturbance within a floodplain.

A. 

Antique shops or craft shops in existing historic outbuildings are subject to the following conditions:

(1) 

The structure must be accessory to an existing, primary residential dwelling, and only one such structure may be utilized hereunder.

(2) 

Both structures must have been constructed prior to 1950 in order to be deemed historic.

(3) 

The overall lot size must be at least one acre with at least 150 feet of road frontage.

(4) 

A site plan application meeting all of the normal site plan requirements must be filed with and approved by the Planning Board.

(5) 

Not more than one nonresident employee shall be permitted at any one time.

(6) 

Adequate parking spaces shall be provided as follows: one per 500 square feet of floor and work area.

(7) 

No such structure may be converted to this use without compliance with the relevant sections of the New York State Fire Prevention and Building Code, if otherwise applicable.

(8) 

Not more than 2,500 square feet of the ground floor area of the structure shall be used for this accessory use.

(9) 

No outdoor display of any items shall be permitted.

(10) 

The first sentence of § 235-12.9A shall not apply to the conversions as hereinabove set forth.

B. 

Accessory building use.

(1) 

Permitted in the RA-2 and RA-.5 Zoning Districts. An existing single-family dwelling unit may be enlarged or converted or an existing detached structure may be converted to include one accessory dwelling use (AU) on a conforming lot in the RA-2 and RA-.5 Zoning Districts, provided all of the conditions of this section have been met:

(a) 

Parking. Adequate off-street parking shall be provided as required under the applicable zoning law and/or subdivision regulations for the single-family dwelling plus an additional two spaces for the AU. These additional two parking spaces shall not be placed in any required yard without adequate screening for any adjoining residences, by use of fencing and/or evergreen plantings, as determined adequate in the discretion of the Building Inspector.

(b) 

Minimum lot size. No accessory dwelling use (AU) shall be permitted unless the underlying lot meets the minimum area and dimensional requirements for that particular zoning district; likewise, accessory dwelling units shall not be allowed on clustered lots. In no event shall an AU be considered as an "as-of-right" unit for any future cluster subdivision proposal.

(c) 

Sanitary disposal system. A test shall be performed by an independent individual or entity, qualified to conduct such tests and submitted to the Building Inspector, to certify both the adequacy of design and the effective operation of the system for the total number of bedrooms existing and proposed or, if a detached unit, for that unit. In the event that such a test determines that an existing sanitary system has to be redesigned and/or reconstructed in order to accommodate the AU or that a second system must be constructed, the sanitary permit to redesign/reconstruct the sanitary system or construct the new system shall be obtained from the office of the Town Engineer prior to the issuance of the building permit. The Engineer for the Town shall require a design prepared and certified by a licensed professional engineer. Appropriate conditions may be imposed by the Engineer for the Town to guarantee that the construction of the repair, replacement, expansion or new installation of sanitary systems occurs in accord with the approved plans and that there are provisions to ensure that the property owner shall be responsible for the ongoing maintenance of such system or systems.

(d) 

Well. A water quality test shall be performed by an independent individual or entity, qualified to conduct such tests and submitted to the Building Inspector to determine that the water supply is safe for domestic use. The well test shall include an analysis for coliform and residual chlorine. Should coliform be present, a test for fecal coliform shall be required. In the event that such test determines that the water supply is not safe for domestic use, any procedures necessary to make the supply safe shall be completed and a new, independent test provided prior to the issuance of the building permit.

(e) 

Location of accessory dwelling unit. An AU may be constructed by conversion of a portion of the existing living space in a single-family dwelling or by construction of an addition to the single-family dwelling or by conversion of an existing, accessory structure or building located on a tax lot where a primary, single-family use exists. In no event shall there be more than one AU on any given tax lot, and no AU shall be allowed in the absence of a separate, primary, single-family use. If an AU is to be permitted in a detached structure existing as of the effective date of this chapter (September 2005), such structure must be located not more than 500 feet from the closest exterior wall of the primary structure and such detached structure must otherwise comply with all setback requirements for accessory structures as elsewhere set forth in the Zoning Law of the Town of Montgomery. If an AU is to be permitted in a detached structure erected after September 2005, such structure must be located not more than 200 feet from the closest exterior wall of the primary structure and must also meet all other applicable setback requirements.

(f) 

Unit size, bedroom(s). The AU shall be limited to no more than one bedroom. An efficiency unit with a clearly defined sleeping area but not a fully enclosed bedroom, also, shall be considered as an AU in lieu of providing an enclosed bedroom. The minimum size of an AU shall be 400 square feet of heated living space or such greater area as may be required by applicable federal, state and local laws, codes, rules and regulations. The maximum size of any AU shall be the lesser of 750 square feet of heated living space or 33.33% of the heated living space of the primary residence.

(g) 

Kitchen. The AU shall have a suitably sized kitchen area, in relation to the overall size of the AU, which shall consist of at least a sink, cooktop, microwave and refrigerator, appropriately sized as in a comparable residential apartment unit.

(h) 

Bathroom. The AU shall have a full enclosed bathroom consisting of at least a toilet, sink and shower, appropriately sized as in a comparable residential apartment unit.

(i) 

Exterior access. Separate direct access to the exterior shall be provided from the AU. Access between the primary unit and the AU is permissible, provided any doors providing such access must be lockable from both sides.

(j) 

Ownership. An AU only shall be allowed in an owner-occupied single-family dwelling or in a detached structure on the same lot where the owner occupies one of the units as his or her primary residence. The owner/occupant must hold record title to at least 50% of the property on which the dwellings are located. No nonindividuals, such as partnerships, corporations, trusts, limited-liability companies or other entities, shall be eligible to receive an AU permit. The owner/occupant must occupy either the (larger) primary space or the AU. In the event the primary living space or the AU is no longer occupied by an individual owner/occupant, the AU shall expire and the use shall be removed six months after such cessation of occupancy, unless for good cause an extension of said time is granted in writing by the Building Department. Provided all relevant provisions of the AU building permit and certificate of occupancy are being complied with, the AU shall be deemed to run with the land, and the rights thereunder shall pass to any successor in title who resides at the premises as his or her primary residence.

(2) 

Application procedure. Any applicant for an AU must submit a building permit application to the Building Inspector with a checklist attachment establishing compliance with all of the requirements for an AU. The applicant must be the owner-applicant who occupies the premises as his or her primary residence. No AU shall be occupied in the absence of a certificate of occupancy from the Building Inspector.

(3) 

Application and inspection fees shall include the standard building permit fee and any other reasonable fee as set forth, from time to time, on the Town of Montgomery Fee Schedule.

Editor's Note: A copy of the Fee Schedule is included at the end of this chapter (see Attachment 7).

(4) 

Inspections; verification. At the time of permit issuance and at any reasonable time thereafter, the Building Department may require various forms of proof that either the primary unit or the AU is occupied by the owner of the property as his or her principal residence. Such forms of proof include, but are not limited to, an affidavit by the owner, copies of utility bills, tax bills and proof that the owner does not have his or her mail forwarded to a different address.

(5) 

New residential subdivisions. In support of the affordable housing policies of the Town, the Planning Board is encouraged to make applicants for residential subdivisions aware of AU options and requirements to help ensure adequacy of parking, well and septic and other site requirements to facilitate the later conversion of existing structures to accessory dwelling units after subdivision approval.

(6) 

Planning Board review of accessory dwelling units. Upon receipt of a complete application for a building permit for an accessory dwelling unit meeting all of the requirements of this chapter, the Building Department shall refer the application to the Town of Montgomery Planning Board, and the applicant shall provide the Planning Board with envelopes containing postage and the addresses of all owners of property contiguous with the subject property as per the latest completed assessment roll of the Town. The Planning Board shall convene an informal, informational meeting and shall in good faith attempt to provide written notice of such meeting to the applicant and to all contiguous landowners at least seven days prior to such meeting. Upon the conclusion of such meeting or within a reasonable time thereafter, the Planning Board shall issue a written report to the Building Inspector with the comments and recommendations of the Planning Board. The Planning Board shall issue its written report to the Building Department not more than 45 days from the date of its receipt of the completed application from the Building Department. The Building Inspector shall include all such recommendations as conditions of the Building Permit for an AU unless the Building Inspector certifies, in writing, to the Planning Board at least five business days prior to the issuance of the permit, the reasons for not incorporating in the building permit any such recommendations. Failure of the Planning Board to issue such a report within such forty-five-day period shall allow the Building Department to rule on the permit application without regard to the recommendations of the Planning Board.

(7) 

New York State Uniform Fire Prevention and Building Code and Housing and Urban Development (HUD) regulations control. Nothing in this Subsection B is intended to supersede any of the provisions of the New York State Uniform Fire Prevention and Building Code or HUD regulations, as amended. If any of the provisions of this section are found to be in conflict with the New York State Uniform Fire Prevention and Building Code or the HUD regulations, such New York State Uniform Fire Prevention and Building Code or HUD regulations, as amended, shall control in all cases. In no case shall habitable living space be approved or occupied under this section without compliance with all applicable federal, state and local laws, codes, rules and regulations.

Within any business or industrial zoning district, a building, structure or lot shall only be used for one of the uses indicated in § 235-7.1, Table of Use Regulations, for the specific district in which it is located on the Zoning Map, and in accordance with the particular classification of that use in that district. Further, any such building, structure or lot shall only be utilized in conformance with the provisions of § 235-7.2, Table of Dimensional Regulations. In addition, such use shall also comply with all other applicable provisions of this chapter. Notwithstanding, except for the OP (Office Park) District, one additional primary use shall be allowed on the same lot, provided that all other zoning use and area requirements for each use have been met and provided, further, that the applicant shall obtain a special exception use permit (SEU) and site plan approval, regardless of whether the individual uses would otherwise be permitted uses not ordinarily requiring a SEU permit. Where two primary uses are to occur on one lot as above, the Planning Board must find that the uses are not incompatible with each other.

See the Table of Use Regulations for Business and Industrial Districts included at the end of this chapter.

See the Table of Dimensional Regulations for Business and Industrial Districts included at the end of this chapter.

See the Table of Bulk Requirements for Composting, Recycling Handling and Recovery Facilities included at the end of this chapter.

Within the borders of the FP Floodplain and A Airport Zones all uses shall be permitted as indicated for the districts in which the uses are located as shown in §§ 235-6 and 235-7, except as follows: Whenever a request for a building permit is made for any use within the FP or A District, the application, at the discretion of the Building Inspector, shall include a site survey with accurate USCGS elevations of all construction, and the Building Inspector shall refuse to issue a building permit if he determines there will be a danger of flooding or danger to aircraft. See Chapter 116, Flood Damage Prevention, of the Code of the Town of Montgomery, or any amendments thereto, for additional requirements for development and/or disturbance within a floodplain.

In the OP (Office Park) District, a lot may contain various accessory uses as set forth in § 235-7.2, provided that each lot shall have only one primary use and that all uses shall be contained within a singular structure on any particular lot. No accessory uses shall be permitted in the absence of a primary use.

The special exception uses listed below only shall be authorized upon jurisdictional approval by the Town Board in specified districts and only after the Town Board has adopted a resolution creating the special exception use and site plan review jurisdiction for the Planning Board for the particular property in question. Such a finding by the Town Board shall not be construed as an approval of the use as that function shall remain with the Planning Board subject to fulfillment of the SEQRA and of the general standards for special use permits found at § 235-15.4B, of the special conditions found at § 235-15.4C and of the site plan standards found at § 235-16.5.

A. 

Uses allowed in the B-4 District.

(1) 

Retail industry. A non-nuisance industry, as elsewhere defined in this chapter, that custom fabricates from finished materials which were not manufactured on the premises and which includes a retail store as a principal use in a designated area with separate direct access from the exterior in which components either manufactured or utilized in connection with the finished product are offered for sale to the public.

B. 

Uses allowed in the RA-.5 District.

(1) 

Senior assisted-care facility as defined in § 235-3.2.

The Gateway Overlay District shall be located as an overlay of existing zoning districts and shall extend 600 feet from both sides of the center lines of the following state, county and Town highways for the distances specified below. All requirements described below in this section only apply to uses within the Gateway Overlay District.

A. 

Areas to which the Gateway Overlay District is applicable.

(1) 

Route 17K from the Town of Newburgh border west to the center lines of Browns Road and Maple Avenue.

(2) 

South Drury Lane, both as existing and as proposed, from the Town of Newburgh border north to Route 17K.

B. 

Planning Board approval required. All uses within the Gateway Overlay District shall be subject to site plan review and approval by the Planning Board in place of the site plan review and approval by the Building Inspector as elsewhere described in this chapter. Nothing in this § 235-7.8 is intended to reduce or replace the existing jurisdiction of the Planning Board regarding subdivision and/or special exception use permit review and approval authority or elsewhere set forth in this chapter and/or in Chapter 200, Subdivision of Land, of the Code of the Town of Montgomery. The overlay district requirements set forth below are in addition to all of the other requirements applicable to the underlying zoning districts as elsewhere set forth in this chapter and Chapter 200, Subdivision of Land, of the Code of the Town of Montgomery, as those requirements now exist or as they may be amended, from time to time.

C. 

(Reserved)

D. 

Special dimensional requirements.

(1) 

Lots shall have a minimum frontage and width at the building setback line of 400 feet for lots adjacent to the roads specified in Subsection A above. However, if lots are set back and front on a marginal or service street or internal driveway running parallel to the specified road, then the minimum lot width and frontage may be reduced to 150 feet.

(2) 

New roads or streets intersecting state or county roads within the Gateway Overlay District shall have rights-of-way of 100 feet in width for a distance of 200 feet back from the center line intersections of the two roads. Curb radii shall be 34 feet for all such intersections and all driveways onto state and county roads.

(3) 

Parking spaces shall be set back at least 55 feet from the center lines of adjacent streets, except for new marginal or service streets where the setback shall be 15 feet from the edge of the curb or pavement line, whichever is greater. In no event shall a parking space be located closer than 15 feet to a property line.

(4) 

Buildings shall be set back at least 100 feet from center lines of adjacent streets.

(5) 

Screening of parked vehicles along major roads or service roads shall be provided for by the use of existing vegetation, berms with low plantings, evergreen plantings in double staggered rows with shrubs or trees 10 feet on center in each row or solid fence, as determined by the Planning Board for the particular area or use to be screened.

(6) 

Loading areas and the rear or sides of buildings which face or can be seen from roadways or proposed roadways shall be screened to the satisfaction of the Planning Board. The Planning Board hereby is authorized to require the complete, year-round screening of said areas and sides and rear of buildings if, in the judgment of the Planning Board, such screening is necessary to promote the purpose of the Gateway Overlay Zoning District.

(7) 

Driveways or property curb cuts in the Gateway Overlay District shall be separated (as measured between center lines) by at least 250 feet from the center lines of intersecting state or county roads with other roads and 100 feet from adjacent driveways.

(8) 

Uses prohibited in the Gateway Overlay District area include all uses presently prohibited by the underlying zoning district regulations as well as the following uses:

(a) 

Abattoir (rendering plants).

(b) 

Auto wrecking yard.

(c) 

Building contractor storage and/or equipment yard.

(d) 

Dry cleaning or laundry plant of more than 4,000 square feet.

(e) 

Fuel oil storage (unless underground as an accessory use to a permitted or special exception use). Fuel storage tanks of 500 gallons or less are permitted above ground at the rear of buildings, if screened with solid fences, walls or landscaping satisfactory to the Planning Board.

(f) 

Municipal sanitary landfill or incinerator.

(g) 

Public utility storage yard.

(h) 

Truck terminals, warehouses and wholesale businesses (unless the truck and trailer parking, storage and loading areas and all equipment and other objects to be stored are fully screened from existing and proposed public highways).

(i) 

Quarry.

(j) 

Storage yard.

(k) 

Automobile laundries (unless they are located off a service road or are part of another use).

(l) 

Commercial outdoor public or private recreation uses (unless located off a service road).

(m) 

Outdoor sales and displays of motor vehicles, mobile homes, trucks, boats and other outdoor sales items, including, without limitation, temporary or transient vending facilities.

(n) 

Repair garages and auto body shops unless part of an auto dealership.

(o) 

Sewage treatment plants.

(p) 

All types of recycling facilities, including processing and transfer facilities.

(q) 

Telecommunications towers, including radio, microwave, and broadcasting towers and antennas.

(9) 

Architectural review. The Planning Board shall have limited architectural review powers for site plans for all uses within the Gateway Overlay District. The Planning Board shall require all exterior features and the character of the project to be consistent internally with the architectural style and/or important features of all buildings on site and with buildings on adjacent lots, where appropriate. Features, concerns and issues to be addressed in the plans shall include:

(a) 

Coordination of size and colors of signs over uses in a multiuse structure.

(b) 

Limitation and coordination of sign color on ground-mounted signs for various uses.

(c) 

Review and approval of colors and types of material to be used on buildings and signs so that they blend with other existing and proposed uses and structures in the area.

(d) 

All site plans shall show landscaping, lighting, signage, the facade of all structures or uses which can be viewed from or face a street, parking lot or driveway area, including proposed roof lines and building colors and exterior building materials. Elevation drawings and/or cross-sections reflecting these items shall be submitted as part of the application to the Planning Board.

(e) 

The architectural review authorized hereunder shall be performed by the Planning Board as part of the site plan review process and shall not require additional applications or processing.

(f) 

At least 5% of the interior of all parking areas shall be landscaped with ornamental trees or other plantings.

(g) 

All nonconforming signage or structures shall be removed as a condition of approval of the site plan.

(h) 

Preservation of existing vistas within the gateway area shall be considered by the Planning Board and shall be preserved to the greatest extent possible.

(i) 

As part of the site plan approval, the Planning Board must find that:

[1] 

The exterior architectural appeal and functional plan of the proposed structure will, when erected, not be so at variance with either the exterior architectural appeal and functional plan of the structures already constructed on site or in the immediate neighborhood or the character of the immediate neighborhood so as to cause a substantial depreciation of property values in the neighborhood.

[2] 

The structure and site plan shall be integrated harmoniously with landscaping, vehicular and pedestrian traffic patterns of all buildings on site and structures on immediately adjacent lots.

[3] 

There will be harmonious use of materials, finished grade lines, dimensions, roof lines, and orientation and location of all main and accessory structures.

[4] 

Planting islands of trees and shrubs shall be designed to allow maximum areas for trees while not interfering with snow removal and maintenance.

(10) 

Vendor's vehicles/trucks shall not be allowed to be parked on or along public roads or elsewhere within the Gateway Overlay District.

(11) 

Off-premises signs which must be located within a right-of-way for visibility purposes must be approved by both the controlling municipality and other jurisdictional agencies involved subsequent to review and recommendation by the Planning Board. Clustered and architecturally integrated off-premises signs may be installed under this provision. All on-premises signs are to be located in the front yard or side yard facing a street and shall be shown on the site plan approved by the Planning Board. The Planning Board is authorized to modify the sign regulations contained in § 235-13 of this chapter to reduce the permitted size and locations of all signage, including freestanding and wall-mounted signs, to achieve the purposes of the Gateway Overlay District without unreasonably restricting the economic viability of the particular use under consideration. For certain types of uses, including, without limitation, industrial parks, directory signs listing the primary users and fulfilling certain standardized design, color, size and locational criteria established by the Planning Board shall be authorized along the main access roads to the same as part of the site plan application for each such use.

(12) 

Utilities.

(a) 

Utility transmission poles and towers may not be located within 100 feet of a street private road, supporting lines that run perpendicular to the traveled way or driveway right-of-way. The right-of-way as viewed from the road shall be screened with foliage along the road to disguise the view of the towers from the road. Such foliage shall be maintained and replaced as needed.

(b) 

Utility transmission lines running parallel to the roads cited in this section as well as Route I-84 shall be located at least 600 feet from the edge of the right-of-way of the specified roads.

(c) 

Utility distribution systems serving new projects and developments in the Gateway Overlay District may be required to be placed underground or located along the rear of lots with cables to buildings located underground. On all projects, the applicant/developer will work with the Town and utility companies to coordinate services so as to maximize the appearance of the area while serving the need of the future users.

(13) 

Street trees recommended for use in the Gateway Overlay District are: red oak, red maple, thornless honey locust, little leaf linden, london plane and aristocrat pear and other types of trees that may be recommended for the particular project under review. All street trees shall be a minimum of two-and-one-half-inch to three-inch caliper when planted. Hedge maples or similar low-growing tree varieties shall be located in areas where utility lines already exist or are proposed. Provisions must be made by the applicant or the successor owner to ensure that such street trees and other landscaping survives or is replaced during the early years of the life of the trees, and the Planning Board is authorized to condition such site plan approval accordingly.

(14) 

In the review of site plans the Planning Board shall require, where practical, the interconnection of adjacent commercial properties in order to provide for the reduction of vehicular turning movements on public highways within the Gateway Overlay District.

“Cluster development” shall mean a subdivision plat or plats, approved pursuant to this § 235-8, in which the applicable zoning law is modified to provide an alternative method for the layout, configuration and design of lots, buildings, structures, roads, utility lines and other infrastructure, parks and landscaping in order to preserve the natural and scenic qualities of open lands.

A. 

The Town Board hereby authorizes the Planning Board to approve a cluster development, subject to the conditions recited elsewhere in this § 235-8, simultaneously with the approval of a subdivision plat or plats pursuant to other enabling legislation found in Article 16 of the Town Law for the State of New York, as amended.

B. 

The provisions of this § 235-8 shall apply in all of the zoning districts of the Town, exclusive of the Planned Adult Community (PAC) Overlay Zone District. The PAC Overlay Zone District regulations are set forth at § 235-15.4C(31) of this chapter.

C. 

The purpose of a cluster development shall be to enable and encourage flexibility of design and development of land in such a manner as to preserve the natural and scenic qualities of open lands in the Town.

A. 

Benefits to the Town. A cluster development may be required at the discretion of the Planning Board, with the concept approval and formal approval of the Town Board as set forth in Subsections D and I below, if, in the judgment of the Planning Board, a cluster development would benefit the Town.

B. 

Specifications. Simultaneous with or prior to the approval of a clustered subdivision, the Planning Board shall establish the specific lot bulk requirements it has authorized as part of the cluster development plan. In addition, any conservation or access easement or other restrictions or design specifications established as part of the overall plan shall be specified on the plat.

C. 

Number of lots or dwelling units. A cluster development shall result in a permitted number of building lots or dwelling units which shall in no case exceed the number which could be permitted, in the Planning Board's judgment, if the land were subdivided into lots conforming to the minimum lot size and density requirements of this chapter applicable to the district or districts in which such land is situated and conforming to all other applicable requirements; provided, however, that where the plat falls within two or more contiguous districts, the Planning Board may approve a cluster development representing the cumulative density as derived from the summing of all units in all such districts, and may authorize actual construction to take place in any portion of one or more of the districts.

D. 

Open space preservation. The Planning Board, as a condition of plat approval, may establish such conditions on the ownership, use and ongoing maintenance of such open lands shown on the plat as it deems necessary to assure the preservation of the natural and scenic qualities of such open lands. The Town Board hereby requires that any such conditions shall be approved by the Town Board by resolution before the final plat may be approved for filing. Prior to the determination of the Town Board as required in this Subsection D, the Town Board must be in receipt of the resolution of the Planning Board declaring that the cluster development will be a benefit to the Town and also must be in receipt of the negative declaration or findings statement pursuant to the SEQRA as prepared by the lead agency.

E. 

Plat requirements. In addition to the standard plat requirements for conventional subdivisions, the plat showing such cluster development may include areas within which structures may be located, the heights and spacing of buildings, open spaces and their landscaping, off-street open and enclosed parking spaces, streets, driveways and other features required by the Planning Board. In the case of a residential plat or plats, the dwelling units permitted may be, at the discretion of the Planning Board, in detached, semidetached, attached or multistory structures.

F. 

Notice and public hearing. The proposed cluster developments shall be subject to review at a public hearing or hearings held pursuant to Article 16 of the New York State Town Law regarding the approval of plats.

G. 

Filing of plat. On the filing of the plat in the office of the Orange County Clerk, a copy shall be filed with the office of the Town Clerk, who shall make appropriate notations and references thereto on the Town Zoning Map required to be maintained per Article 16 of the Town Law of the State of New York.

H. 

Effect. The provisions of this § 235-8 shall not be deemed to authorize a change in the permissible use of such land as elsewhere provided in this chapter of the Code of the Town of Montgomery.

I. 

Town Board concept review. The requirements of this Subsection I shall be deemed to be a portion of the criteria set forth at Town Law § 278(3)a. In addition to the final approval of the Town Board as to the ownership, use and maintenance of open space as set forth in Subsection D above, the subdivider shall appear before the Town Board to present the proposed cluster plan concept to the Town Board after the proposed cluster plan has received an informal concept or sketch approval from the Planning Board. The purpose of this appearance before the Town Board is to ascertain if the Town Board is to exercise its authority to reject or modify the proposed cluster plan concept. If the Town Board is to reject or modify the proposed cluster plan concept, it must do so by resolution within 45 days of the first appearance before the Town Board. If the Town Board fails to reject or modify the cluster plan concept within such forty-five-day period, the clustered subdivision plan may proceed to the preliminary public hearing stage before the Planning Board generally as presented. If the Town Board finds it to be in the public interest to authorize the continued review of the cluster plan by the Planning Board, with or without modification, it may do so by resolution prior to the expiration of such forty-five-day period, which resolution shall not be deemed to be an action pursuant to the SEQRA and/or an approval of said plan, as that approval shall remain within the sole discretion of the Planning Board as elsewhere provided in this § 235-8 and in Article 16 of the NYS Town Law and in accordance with the obligations of the lead agency pursuant to the SEQRA and the regulations thereunder.

In all districts, no building, structure or lot shall be used in whole or in part for any of the following uses:

A. 

Any trade, business, industry or process which is noxious or offensive by reason of the production or emission of smoke, noise, gas, odor, dust, refuse matter, vibration or excessive light beyond the limits of its lot so as to be dangerous or prejudicial to the public health, safety or general welfare.

B. 

Billboards.

C. 

Explosives or gunpowder manufacture.

D. 

House trailers or mobile homes used for residential purposes, except that mobile homes may be used in the R-MHC District.

E. 

Outdoor lighting facilities of any kind where the light source is visible from outside the property lines, or where glare beyond the property lines creates public hazards or nuisances to nearby residential zones or to traffic on adjacent streets.

F. 

Open-air retail sales establishments other than those specifically permitted in the Tables of Use Regulations for Residence and Agricultural Districts and Business and Industrial Districts.

Editor's Note: The Tables of Use Regulations are included at the end of this chapter.

G. 

Rear dwelling except where otherwise allowable as a caretaker's dwelling as elsewhere described in this chapter.

H. 

Recreation center devices such as sky rides, Ferris wheels, roller coasters, shooting galleries, except on a temporary permit issued by the municipality.

I. 

Wastewater treatment.

(1) 

The Town of Montgomery finds that the approval of new or expanded wastewater treatment plants should be a matter within the sole discretion of the Town Board and should not be the subject of a Planning Board special exception use permit and/or a Planning Board site plan approval. Notwithstanding anything set forth above to the contrary, the Town Board recognizes that the lands zoned as Planned Adult Communities (PAC) within the Town of Montgomery are required by local law to be located within special improvement districts for both central water and central sewage treatment services. Accordingly, nothing herein contained shall be interpreted to prevent the Town Board, in its sole discretion, from approving any of the various water and wastewater treatment options which are or may be available to the lands zoned Planned Adult Community (PAC). Additionally, the Town Board recognizes that centralized water and/or sewage systems may be of benefit to areas where existing systems may have failed or may fail in the future. Finally, centralized water and/or sewage systems may be of benefit to the Town to promote the use of other land-use development tools, such as clustering and/or incentive zoning, all to be determined in the sole discretion of the Town Board.

(2) 

The decision as to whether or not a particular area of the Town of Montgomery is to receive sewer and/or water centralized services is a decision that involves many different policy issues and must properly vest solely with the Town Board, subject to the subsequent approval of all other regulatory agencies as required by law. In most cases, the Town Board also will have to exercise other discretionary authority in connection with the decision to allow the construction or expansion of central water and sewer facilities, such as the related but distinct approval of special improvement facilities and/or district creation or extension. The issue of whether a new water storage and distribution system or a new sewage treatment plant is built and/or whether an existing Town water system or sewage treatment plant is expanded, is a Town Board legislative policy determination and should not be within the discretion of the Town of Montgomery Planning Board.

It is hereby determined that:

A. 

Land development activities and associated increases in site impervious cover often alter the hydrologic response of local watersheds and increase stormwater runoff rates and volumes, flooding, stream channel erosion, or sediment transport and deposition.

B. 

This stormwater runoff contributes to increased quantities of water-borne pollutants, including siltation of aquatic habitat for fish and other desirable species.

C. 

Clearing and grading during construction tend to increase soil erosion and add to the loss of native vegetation necessary for terrestrial and aquatic habitat.

D. 

Improper design and construction of stormwater management practices can increase the velocity of stormwater runoff, thereby increasing stream bank erosion and sedimentation.

E. 

Impervious surfaces allow less water to percolate into the soil, thereby decreasing groundwater recharge and stream baseflow.

F. 

Substantial economic losses can result from these adverse impacts on the waters of the municipality.

G. 

Stormwater runoff, soil erosion and nonpoint source pollution can be controlled and minimized through the regulation of stormwater runoff from land development activities.

H. 

The regulation of stormwater runoff discharges from land development activities in order to control and minimize increases in stormwater runoff rates and volumes, soil erosion, stream channel erosion, and nonpoint source pollution associated with stormwater runoff is in the public interest and will minimize threats to public health and safety.

I. 

Regulation of land development activities by means of performance standards governing stormwater management and site design will produce development compatible with the natural functions of a particular site or an entire watershed and thereby mitigate the adverse effects of erosion and sedimentation from development.

The purpose of this § 235-10 is to establish minimum stormwater management requirements and controls to protect and safeguard the general health, safety, and welfare of the public residing within this jurisdiction and to address the findings of fact in § 235-10.1 hereof. This § 235-10 seeks to meet those purposes by achieving the following objectives:

A. 

Meet the requirements of minimum measures four and five of the SPDES General Permit for Stormwater Discharges from Municipal Separate Stormwater Sewer Systems (MS4s), Permit No. GP-02-02 or as amended or revised;

B. 

Require land development activities to conform to the substantive requirements of the NYS Department of Environmental Conservation State Pollutant Discharge Elimination System (SPDES) General Permit for Construction Activities GP-02-01 or as amended or revised;

C. 

Minimize increases in stormwater runoff from land development activities in order to reduce flooding, siltation, increases in stream temperature, streambank erosion and maintain the integrity of stream channels;

D. 

Minimize increases in pollution caused by stormwater runoff from land development activities which would otherwise degrade local water quality;

E. 

Minimize the total annual volume of stormwater runoff which flows from any specific site during and following development to the maximum extent practicable; and

F. 

Reduce stormwater runoff rates and volumes, soil erosion and nonpoint source pollution, wherever possible, through stormwater management practices and ensure that these management practices are properly maintained and eliminate threats to public safety.

A. 

This § 235-10 shall be applicable to all land development activities as defined in this § 235-10.

B. 

The municipality shall designate a municipal officer or employee as the Stormwater Management Officer (SMO), who shall accept and review all stormwater pollution prevention plans (SWPPP). The Stormwater Management Officer (SMO) may, upon approval by the Town Board of the Town of Montgomery, engage the services of a registered professional engineer to review the SWPPP and related specifications and documents at a cost not to exceed a fee schedule established by said governing board and/or may accept the certification of a licensed professional that the plans conform to the requirements of this § 235-10.

C. 

All land development activities and building permit applications subject to review and approval by the Planning Board, Zoning Board of Appeals and/or the Building Department of the Town of Montgomery under any other provisions of this chapter of the Code of the Town or of the New York State Uniform Fire Prevention and Building Code shall be reviewed subject to the standards contained in this § 235-10 and no approval or permit shall occur unless subject to full compliance with such standards.

D. 

All other land development activities that are not subject to review as set forth above, nonetheless, shall be required to submit a stormwater pollution prevention plan (SWPPP) to the SMO, who shall approve the SWPPP if it complies with the requirements of this § 235-10.

The following activities may be exempt from review under this § 235-10:

A. 

Agricultural activity as defined in this § 235-10 or as determined by the New York State Department of Agriculture and Markets.

B. 

Silvicultural activity, except that landing areas and log haul roads are subject to this § 235-10.

C. 

Routine maintenance activities that disturb fewer than five acres and are performed to maintain the original line and grade, hydraulic capacity or original purpose of a facility. The SMO shall have the sole discretion to determine if an activity is or is not a "routine maintenance activity."

D. 

Repairs to any stormwater management practice or facility deemed necessary by the SMO.

E. 

Any part of a subdivision if a plat for the subdivision has been approved by the Town of Montgomery and filed with the Orange County Clerk on or before June 7, 2005. Additionally, any site plan approved, signed by the appropriate municipal official and filed with the Town on or before June 7, 2005, shall be exempt.

F. 

Land development activities for which an unconditional building permit has been issued on or before June 7, 2005.

G. 

Cemetery graves.

H. 

Installation of a fence, sign, telephone, and electric poles and other kinds of posts or poles, provided no such installation shall result in any adverse impacts that this § 235-10 is designed to prevent or mitigate.

I. 

Emergency activity immediately necessary to protect life, property or natural resources.

J. 

Activities of an individual engaging in home gardening by growing flowers, vegetables and other plants primarily for use by that person and his or her family.

K. 

Landscaping and horticultural activities in connection with an existing structure, provided that there is no disturbance of the stabilized topsoil.

The terms used in this § 235-10 or in documents prepared or reviewed under this § 235-10 shall have the meanings as set forth below:

AGRICULTURAL ACTIVITY
The activity of an active farm, including grazing and watering livestock, irrigating crops, harvesting crops, using land for growing agricultural products, and cutting timber for sale, but shall not include the operation of a dude ranch or similar operation, or the construction of new structures associated with agricultural activities that, in the opinion of the SMO, will result in any adverse impacts that this § 235-10 is designed to prevent or mitigate. Notwithstanding, the Commissioner of the NYS Department of Agriculture and Markets shall have the final determination as to whether or not an activity is considered an agricultural activity.
APPLICANT
A property owner or agent of a property owner who has filed an application for a land development activity.
BUILDING
Any structure, either temporary or permanent, having walls and a roof, designed for the shelter of any person, animal, or property, and occupying more than 100 square feet of area.
CHANNEL
A natural or artificial watercourse with a definite bed and banks that conducts continuously or periodically flowing water.
CLEARING
Any activity that removes the vegetative surface cover.
CODE ENFORCEMENT OFFICER
The Building Inspector or Assistant Building Inspector of the Town.
DEDICATION
The deliberate appropriation of property by its owner for general public use.
DEPARTMENT
The New York State Department of Environmental Conservation.
DESIGN MANUAL
The New York State Stormwater Management Design Manual, as the same now exists or as it may be amended from time to time, that serves as the official guide for stormwater management principles, methods and practices.
DEVELOPER
A person who undertakes land development activities.
EROSION CONTROL MANUAL
The New York Standards and Specifications for Erosion and Sediment Control manual, commonly known as the "Blue Book," as the same now exists or as it may be amended from time to time.
GRADING
Excavation or fill of material, including the resulting conditions thereof.
IMPERVIOUS COVER
Those surfaces, improvements and structures that cannot effectively infiltrate rainfall, snow melt and water (e.g., building rooftops, pavement, sidewalks, driveways, etc.).
INDUSTRIAL STORMWATER PERMIT
A State Pollutant Discharge Elimination System permit issued to a commercial industry or group of industries which regulates the pollutant levels associated with industrial stormwater discharges or specifies on-site pollution control strategies.
INFILTRATION
The process of percolating stormwater into the subsoil.
JURISDICTIONAL WETLAND
An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as “hydrophytic vegetation.”
LAND DEVELOPMENT ACTIVITY FOR LESS THAN ONE ACRE
Regulated by the Town of Montgomery "Standard Plan" described in § 235-10.6D below.
LAND DEVELOPMENT ACTIVITY IN EXCESS OF ONE ACRE
Construction activity, including clearing, grading, excavating, soil disturbance or placement of fill, that results in land disturbance of equal to or greater than one acre or activities disturbing less than one acre of total land area that is part of a larger common plan of development or sale, even though multiple separate and distinct land development activities may take place at different times on different schedules.
LANDOWNER
The legal or beneficial owner of land, including those holding the right to purchase or lease the land, or any other person holding proprietary rights in the land.
MAINTENANCE AGREEMENT
A legally recorded document that acts as a property restriction, and which provides for long-term maintenance of stormwater management practices.
NONPOINT SOURCE POLLUTION
Pollution from any source other than from any discernible, confined, and discrete conveyances, and shall include, but not be limited to, pollutants from agricultural, silvicultural, mining, construction, subsurface disposal and urban runoff sources.
PHASING
Clearing a parcel of land in distinct pieces or parts, with the stabilization of each piece completed before the clearing of the next.
POLLUTANT OF CONCERN
Sediment or a water quality measurement that addresses sediment (such as total suspended solids, turbidity or siltation) and any other pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the land development activity.
PROJECT
Land development activity.
RECHARGE
The replenishment of underground water reserves.
SEDIMENT CONTROL
Measures that prevent eroded sediment from leaving the site.
SENSITIVE AREAS
Cold water fisheries, shellfish beds, swimming beaches, groundwater recharge areas, water supply reservoirs, habitats for threatened, endangered or special concern species.
SPDES GENERAL PERMIT FOR CONSTRUCTION ACTIVITIES GP-02-01
A permit under the New York State Pollutant Discharge Elimination System (SPDES) issued to developers of construction activities to regulate disturbance of one or more acres of land.
SPDES GENERAL PERMIT FOR STORMWATER DISCHARGES FROM MUNICIPAL SEPARATE STORMWATER SEWER SYSTEMS GP-02-02
A permit under the New York State Pollutant Discharge Elimination System (SPDES) issued to municipalities to regulate discharges from municipal separate storm sewers for compliance with EPA-established water quality standards and/or to specify stormwater control standards.
STABILIZATION
The use of practices that prevent exposed soil from eroding.
STOP-WORK ORDER
An order issued which requires that all construction activity on a site be stopped.
STORMWATER
Rainwater, surface runoff, snowmelt and drainage.
STORMWATER HOTSPOT
A land use or activity that generates higher concentrations of hydrocarbons, trace metals or toxicants than are found in typical stormwater runoff, based on monitoring studies.
STORMWATER MANAGEMENT
The use of structural or nonstructural practices that are designed to reduce stormwater runoff and mitigate its adverse impacts on property, natural resources and the environment.
STORMWATER MANAGEMENT FACILITY
One or a series of stormwater management practices installed, stabilized and operating for the purpose of controlling stormwater runoff.
STORMWATER MANAGEMENT OFFICER (SMO)
An employee or officer designated by the municipality to accept and review stormwater pollution prevention plans, forward the plans to the applicable municipal board and inspect stormwater management practices.
STORMWATER MANAGEMENT PRACTICES (SMPs)
Measures, either structural or nonstructural, that are determined to be the most effective, practical means of preventing flood damage and preventing or reducing point source or nonpoint source pollution inputs to stormwater runoff and water bodies.
STORMWATER POLLUTION PREVENTION PLAN (SWPPP)
A plan for controlling stormwater runoff and pollutants from a site during and after construction activities.
STORMWATER RUNOFF
Flow on the surface of the ground, resulting from precipitation.
SURFACE WATERS OF THE STATE OF NEW YORK
Lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial seas of the State of New York and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, public or private (except those private waters that do not combine or effect a junction with natural surface water or underground waters), which are wholly or partially within or bordering the state or within its jurisdiction. Storm sewers and waste treatment systems, including treatment ponds or lagoons, which also meet the criteria of this definition are not waters of the state. This exclusion applies only to man-made bodies of water which neither were originally created in waters of the state (such as a disposal area in wetlands) nor resulted from impoundment of waters of the state.
WATERCOURSE
A permanent or intermittent stream or other body of water, either natural or man-made, which gathers or carries surface water.
WATERWAY
A channel that directs surface runoff to a watercourse or to the public storm drain.
A. 

Stormwater pollution prevention plan requirement. No application for approval of a land development activity and/or building permit shall be approved until the appropriate board or the Building Department has received a stormwater pollution prevention plan (SWPPP) prepared in accordance with the specifications in this § 235-10.

B. 

Contents of all stormwater pollution prevention plans. All SWPPPs shall provide the following background information and erosion and sediment controls:

(1) 

Background information about the scope of the project, including location, type and size of project.

(2) 

Site map/construction drawing(s) for the project, including a general location map. At a minimum, the site map should show the total site area; all improvements; areas of disturbance; areas that will not be disturbed; existing vegetation; on-site and adjacent off-site surface water(s); wetlands and drainage patterns that could be affected by the construction activity; existing and final slopes; locations of off-site material, waste, borrow or equipment storage areas; and location(s) of the stormwater discharge(s). The site map should be at a scale no smaller than one inch equals 100 feet.

(3) 

Description of the soil(s) present at the site.

(4) 

Construction phasing plan describing the intended sequence of construction activities, including clearing and grubbing, excavation and grading, utility and infrastructure installation and any other activity at the site that results in soil disturbance. Consistent with the New York Standards and Specifications for Erosion and Sediment Control (Erosion Control Manual), not more than five acres shall be disturbed at any one time unless pursuant to an approved SWPPP.

(5) 

Description of the pollution prevention measures that will be used to control litter, construction chemicals and construction debris from becoming a pollutant source in stormwater runoff.

(6) 

Description of construction and waste materials expected to be stored on-site with updates as appropriate, and a description of controls to reduce pollutants from these materials, including storage practices to minimize exposure of the materials to stormwater, and spill prevention and response.

(7) 

Temporary and permanent structural and vegetative measures to be used for soil stabilization, runoff control and sediment control for each stage of the project from initial land clearing and grubbing to project close-out.

(8) 

A site map/construction drawing(s) specifying the location(s), size(s) and length(s) of each erosion and sediment control practice.

(9) 

Dimensions, material specifications and installation details for all erosion and sediment control practices, including the siting and sizing of any temporary sediment basins.

(10) 

Temporary practices that will be converted to permanent control measures.

(11) 

Implementation schedule for staging temporary erosion and sediment control practices, including the timing of initial placement and duration that each practice should remain in place.

(12) 

Maintenance schedule to ensure continuous and effective operation of the erosion and sediment control practice.

(13) 

Name(s) of the receiving water(s).

(14) 

Delineation of SWPPP implementation responsibilities for each part of the site.

(15) 

Description of structural practices designed to divert flows from exposed soils, store flows, or otherwise limit runoff and the discharge of pollutants from exposed areas of the site to the degree attainable.

(16) 

Any existing data that describes the stormwater runoff at the site.

C. 

Classification. Land development activities shall be classified by the SMO as any one or more of the following conditions:

(1) 

Condition A: Stormwater runoff from land development activities discharging a pollutant of concern to either an impaired water identified on the Department's 303(d) list of impaired waters or a total maximum daily load (TMDL) designated watershed for which pollutants in stormwater have been identified as a source of the impairment.

(2) 

Condition B: stormwater runoff from land development activities disturbing five or more acres.

(3) 

Condition C: stormwater runoff from land development activities disturbing between one acre and five acres of land during the course of the project, exclusive of the construction of single-family residences and construction activities at agricultural properties.

(4) 

Condition D: stormwater runoff from land development activities disturbing less than one acre.

D. 

Additional SWPPP requirements for Conditions A, B and C:

(1) 

All information in Subsection B above.

(2) 

Description of each postconstruction stormwater management practice.

(3) 

Site map/construction drawing(s) showing the specific location(s) and size(s) of each postconstruction stormwater management practice.

(4) 

Hydrologic and hydraulic analysis for all structural components of the stormwater management system for the applicable design storms.

(5) 

Comparison of postdevelopment stormwater runoff conditions with predevelopment conditions.

(6) 

Dimensions, material specifications and installation details for each postconstruction stormwater management practice.

(7) 

Maintenance schedule to ensure continuous and effective operation of each postconstruction stormwater management practice.

(8) 

Maintenance easements to ensure access to all stormwater management practices at the site for the purpose of inspection and repair. Easements shall be recorded on the plan and shall remain in effect with transfer of title to the property.

(9) 

Inspection and maintenance agreement binding on all subsequent landowners served by the on-site stormwater management measures in accordance with this § 235-10.

E. 

The Town's "Standard Plan," otherwise known as the "Town SWPPP," for Condition D is as follows: This Standard Plan is issued by the Town of Montgomery and is subject to any special conditions listed on the application. New York State law requires that provisions to control erosion and sediment shall be included for all construction where any excavation, stripping, filling, grading or earth movement takes place. As required by state law, building permits cannot be issued until such erosion and sediment control provisions are approved. Owners and applicants are advised that building permits are not issued until this plan is implemented and site approval has been granted.

(1) 

Applicability. This Standard Plan may only be utilized for minor grading activities associated with minor commercial and residential construction for earth disturbances where all the following conditions are met:

(a) 

The lot is on a paved, graveled, or publicly maintained street where storm drain facilities are in operation and roadside ditches are stabilized.

(b) 

Stormwater management facilities are not required on the lot. (For projects where facilities have been designed, this plan represents a starting point, but is not sufficiently comprehensive.)

(c) 

No more than 15,000 square feet will be disturbed during development of any one lot, but in any critical area, not more than 5,000 square feet will be disturbed.

(d) 

Steep slopes with a grade of 15% or greater will not be disturbed. A twenty-five-foot undisturbed buffer must be maintained from the top of 25% or greater slopes within a sensitive area.

(e) 

Development for minor subdivision will take place on not more than two lots at one time.

(f) 

Any proposed grading will not impair existing surface drainage, constitute a potential erosion hazard, or act as a source of sedimentation to any adjacent land or watercourse, or affect any sediment and erosion control plan previously approved by the Town of Montgomery.

(g) 

Changes in grade or removal of vegetation shall not take place in established buffers or within 100 feet of the mean high water line of a body of water, except for approved buffer management plans disturbing less than 5,000 square feet and the establishment of approved shoreline erosion control projects where no grading is to take place.

(h) 

The proposed construction is not subject to a separate erosion and sediment control plan.

(2) 

Conditions.

(a) 

Access to the site and this plan shall be available at all times for inspection by representatives of the Town of Montgomery.

(b) 

The applicant/permittee shall notify the Town of Montgomery at least 48 hours prior to commencing clearing or grading (telephone number: 845-457-2640).

(c) 

This Standard Plan is valid only if development of the lot proceeds in accordance with state laws and the rules and regulations governing sediment control, land use, and environmental impact.

(d) 

In the event that the applicant fails to provide adequate sediment controls according to the provisions of this plan and standards and specifications, or if the sediment controls installed on the site do not provide adequate protection, the Town of Montgomery Code Enforcement Officer and the Town Engineer may stop all work at the referenced site and require corrective actions.

(e) 

This Standard Plan is subject to revocation by the Town of Montgomery or the Code Enforcement Officer whenever determination is made, and after notice is given, that the site is in violation of the rules and regulations promulgated under state law and/or the conditions specified by this plan.

(f) 

If there is any concurrent construction on adjoining lots, the Town of Montgomery may take individual and separate actions to assure sediment controls are in compliance with state laws and the approved erosion and sediment control plan.

(g) 

Nothing herein relieves the applicant/permittee from complying with any and all of the state laws and regulations.

(h) 

This Standard Plan is valid for the life of the building permit or a period of six months if not associated with a building permit.

(3) 

Grading.

(a) 

Initial clearing and earth disturbance shall be limited to that necessary to install sediment control measures. Excavation for footings, clearing, or other earth disturbance may only take place after the sediment and erosion controls are installed.

(b) 

The permanent driveway or entrance location shall be used as a stabilized construction entrance. Two-inch stone shall be placed at a minimum six-inch depth, 30 feet long, and 10 feet wide. The entrance shall be top dressed with stone as necessary to prevent tracking of sediment onto public streets or rights-of-way. Sediment tracked onto public streets must be removed or cleaned on a daily basis. All vehicular traffic onto the site will use this stabilized construction entrance.

(c) 

At any location where surface runoff from disturbed or graded areas may flow off the construction area, sediment control measures must be installed, including a silt fence or straw bales to prevent sediment from being transported off site. No grading, filling or other disturbance is allowed within existing drainage swales.

(d) 

Swales or other areas that transport concentrated flow shall be sodded. Downspout or sump pump discharges must have acceptable outfalls that are protected by splashblocks, sod, or piping as required by site conditions (i.e., no concentrated flow directed over fill slopes).

(e) 

Surface flows over existing or proposed cut and fill slopes shall be controlled by either redirecting flows from traversing the slopes or by installing mechanical devices to safely lower water downslope without causing erosion. Any percolating water resulting from any development activities must be properly conveyed to an acceptable outfall.

(f) 

Final graded slopes shall be no steeper than four horizontal units to one vertical unit (25%), nor higher than five feet without prior approval.

(g) 

All materials originating from development of the lot and public right-of-way shall be removed immediately to an acceptable disposal facility.

(h) 

Final site drainage shall be such as to prevent erosion, concentrated flows to adjacent properties, uncontrolled overflow, and ponding. Positive drainage away from the foundation must be provided in accordance with the New York State Code. The foundation must extend at least eight inches above finished grade and a minimum slope of at least 0.5 inch per foot of fall must be maintained away from the foundation.

(4) 

Stabilization. Following initial soil disturbance and redisturbance, permanent or temporary stabilization shall be completed within:

(a) 

Seven calendar days from the time that the soil is initially disturbed, and before any significant storm event which may have the potential to cause erosion, but not to exceed seven days from initial disturbance.

(b) 

Fourteen calendar days for all approved stock piles and other disturbed or graded areas, provided construction grading activity is not continually ongoing in these locations.

F. 

Specifications. Specifications regarding silt fence, straw bale dikes, earth dikes, stone outlet structures, stone construction entrances, temporary and permanent stabilization practices, and any other sediment and erosion control practices are contained in the current New York State Guidelines for Urban Erosion and Sediment Control as amended and revised. Specifically, the following limitations for silt fencing may not be exceeded:

(1) 

Maximum allowable slope length of the contributing runoff and maximum silt fence length.

Slope Length Slope Length (feet) Silt Fence (feet)
2:1 and steeper 20 125
3:1 to 2:1 40 250
5:1 to 3:1 60 500
10:1 to 5:1 100 750
50:1 to 10:1 125 1,000
Flatter than 50:1 300 Unlimited
(2) 

Maximum drainage area may not exceed 1/2 acre per 100 feet of silt fence.

(3) 

Silt fence must be placed on or parallel to contours where there is no concentration of water flowing to the silt fence and erosion will occur in the form of sheet erosion. The area below the silt fence must be undisturbed ground.

(4) 

Silt fence material and installation complies with the Standard Drawing.

G. 

Plan implementation.

(1) 

The appropriate sample sediment control drawing must be implemented as depicted by site slope and drainage conditions.

(2) 

A building permit shall not be issued until sediment control approval has been obtained. This Standard Plan is a condition and part of the building permit.

H. 

Details and specifications for vegetative establishment for Standard Plan.

(1) 

Permanent seeding.

(a) 

Seedbed preparation. The area to be seeded shall be loose and friable to a depth of at least three inches. The top layer shall be loosened by raking, disking or other acceptable means before seeding occurs. For sites less than five acres, apply 100 pounds of dolomitic limestone and 21 pounds of 10-20-20 fertilizer per 1,000 square feet. Harrow or disk lime and fertilizer into the soil to a depth of at least three inches on slopes flatter than 3:1.

(b) 

Seeding. Apply five to six pounds per 1,000 square feet of seed mix between February 1 and May 15 or between August 15 and October 31. Apply seed uniformly on a moist, firm seedbed with a cyclone seeded drill, cultipacker seeder or hydroseeder (slurry includes seeds and fertilizer, recommended on steep slopes only). Maximum seed depth should be 1/4 inch in clayey soils and 1/2 inch in sandy soils when using other than the hydroseeder method. Irrigate if soil moisture is deficient to support adequate growth until vegetation is firmly established. Select seed mixtures from Section 3, New York State Guidelines for Urban Erosion and Sediment Control.

(c) 

Mulching. Mulch shall be applied to all seeded areas immediately after seeding. During the time periods when seeding is not permitted, mulch shall be applied immediately after grading. Mulch shall be unrotted, unchopped, small grain straw applied at a rate of two tons per acre or 90 pounds per 1,000 square feet (two bales). If a mulch anchoring tool is used, apply 2.5 tons per acre. Mulch materials shall be relatively free of all kinds of weeds and shall be completely free of prohibited noxious weeds. Spread mulch uniformly, mechanically, or by hand to a depth of one inch to two inches.

(d) 

Securing straw mulch. Straw mulch shall be secured immediately following mulch applications to minimize movement by wind or water. The following methods are permitted:

[1] 

Use a mulch anchoring tool which is designed to punch and anchor fabric-type mulch into the soil surface to a minimum depth of two inches. This is the most effective method for securing mulch; however, it is limited to relatively flat areas where equipment can operate safely.

[2] 

Wood cellulose fiber may be used for anchoring straw. Apply the fiber binder at a net dry weight of 750 pounds per acre. If mixed with water, use 50 pounds of wood cellulose fiber per 100 gallons of water.

[3] 

Liquid binders may be used and applied heavier at the edges where wind catches mulch, such as in valleys and on crests of slopes. The remainder of the area should appear uniform after binder application.

[4] 

Lightweight netting may be used to secure mulch. The netting will be stapled to the ground according to manufacturer's recommendations.

(2) 

Temporary seeding.

(a) 

Lime: 100 pounds of dolomitic limestone per 1,000 feet.

(b) 

Fertilizer: 15 pounds of 10-10-10 per 1,000 square feet.

(c) 

Seed: Perennial rye, 0.92 pound per 1,000 square feet (February 1 through May 1 or August 15 through November 1).

(d) 

Mulch: Same as above.

(3) 

Fill. No fills may be placed on frozen ground. All fill is to be placed in approximately horizontal layers, each layer having a loose thickness of not more than eight inches. All fill in roadways and parking areas is to be classified Type 2 compacted to ninety-percent density; compaction to be determined by ASTM D-1557-66T (Modified Proctor). Any fill within the building area is to be compacted to a minimum of 95% as determined by methods previously mentioned. Fills for pond embankments shall be compacted as per the project engineer's specifications. All other fills shall be compacted sufficiently so as to be stable and prevent erosion and slippage.

(4) 

Permanent sod. Installation of sod should follow permanent seeding dates. Permanent sod is to be state-approved sod; lime and fertilizer per permanent seeding specifications and lightly irrigate soil prior to laying sod. Sod is to be laid on the contour with all ends tightly abutting. Joints are to be staggered between rows. Water and roll or tamp sod to ensure positive root contact with the soil. All slopes steeper than 3:1, as shown, are to be permanently sodded or protected with approved erosion control netting. Additional watering for establishment may be required. Sod is not to be applied on frozen ground. Sod shall not be harvested or transplanted when moisture content (dry or wet) and/or extreme temperature may adversely affect its survival. In the absence of adequate rainfall, irrigation should be performed to ensure established sod. NOTE: This plan does not preclude the applicant from meeting all of the requirements for the New York State Guidelines for Urban Erosion and Sediment Control.

I. 

Construction design drawings/specifications.

(1) 

Stabilized construction entrances.

(a) 

Details.

Stabilized Construction Entrance Details
(b) 

Construction specifications.

[1] 

Stone size: use two-inch stone or reclaimed or recycled concrete equivalent.

[2] 

Length: not less than 50 feet (except on a single residence lot where a thirty-foot minimum length would apply).

[3] 

Thickness: not less than six inches.

[4] 

Width: twelve-foot minimum, but not less than the full width at points where ingress or egress occurs; 24 feet if single entrance to site.

[5] 

Filter cloth: will be placed over the entire area prior to placing of stone.

[6] 

Surface water: All surface water flowing or diverted toward construction entrances shall be piped across the entrance. If piping is impractical, a mountable berm with 5:1 slopes will be permitted.

[7] 

Maintenance: The entrance shall be maintained in a condition which will prevent tracking or flowing of sediment onto public rights-of-way. All sediment spilled, dropped, washed or tracked onto public rights-of-way must be removed immediately.

[8] 

When washing is required, it shall be done on an area stabilized with stone and which drains into an approved sediment trapping device.

[9] 

Periodic inspection and needed maintenance shall be provided after each rain.

(2) 

Silt fences.

(a) 

Details.

Silt Fence Details
(b) 

Construction notes for fabricated silt fence.

[1] 

Woven wire fence to be fastened securely to fence posts with wire ties or staples.

[2] 

Filter cloth to be fastened securely to woven wore fence with ties spaced every 24 inches at top and mid-section.

[3] 

When two sections of filter cloth adjoin each other they shall be overlapped by six inches and folded.

[4] 

Maintenance shall be performed as needed and material removed when "bulges" develop in silt fence.

[5] 

Posts: steel, either "T" or "U" type or two-inch hardwood.

[6] 

Fence: woven wire, 14 1/2 ga., six inches maximum mesh opening.

[7] 

Filter cloth: Filter X, MIRAFI 100x, Stabilinka T140N or approved equal.

[8] 

Prefabricated unit: GeoFab, Envirofence or approved equal.

(3) 

Straw bale dikes.

(a) 

Details.

Straw Bale Dike Details
(b) 

Construction specifications.

[1] 

Bales shall be placed at the toe of a slope or on the contour and in a row with ends tightly abutting the adjacent bales.

[2] 

Each bale shall be embedded in the soil a minimum of four inches and placed so the bindings are horizontal.

[3] 

Bales shall be securely anchored in place by either two stakes or rebars driven through the bale. The first stake in each bale shall be driven toward the previously laid bale at an angle to force the bales together. Stakes shall be driven flush with the bale.

[4] 

Inspection shall be frequent and repair or replacement shall be made promptly as needed.

[5] 

Bales shall be removed when they have served their usefulness so as not to block or impede storm flow or drainage.

(4) 

Check dams.

(a) 

Details.

Check Dam Details
(b) 

Construction details.

[1] 

Stone will be placed on a filter fabric foundation to the lines, grades and locations shown on the plan.

[2] 

Set spacing of check dams to assume that the elevation of the crest of the downstream dam is at the same elevation of the toe of the upstream dam.

[3] 

Extend the stone a minimum of 1.5 feet beyond the ditch banks to prevent cutting around the dam.

[4] 

Protect the channel downstream of the lowest check dam from scour and erosion with stone or liner as appropriate.

[5] 

Ensure that channel appurtenances such as culvert entrances below check dams are not subject to damage or blockage from displaced stones.

(5) 

Typical lot erosion and sediment controls.

Typical Lot Erosion and Sediment Control Detail
J. 

Certifications and permits.

(1) 

Plan certification. The SWPPP shall be prepared by a certified professional in erosion sediment control (CPESC) or a certified professional in stormwater quality (CPSWQ) or a professional engineer and must be signed by the professional preparing the plan, who shall certify that the design of all stormwater management practices meets the requirements in this § 235-10.

(2) 

Other environmental permits. The applicant shall assure that all other applicable environmental permits have been or will be acquired for the land development activity prior to approval of the final stormwater design plan.

(3) 

Contractor certification.

(a) 

Each contractor and subcontractor identified in the SWPPP who will be involved in soil disturbance and/or stormwater management practice installation shall sign and date a copy of the following certification statement before undertaking any land development activity: "I certify under penalty of law that I understand and agree to comply with the terms and conditions of the Stormwater Pollution Prevention Plan. I also understand that it is unlawful for any person to cause or contribute to a violation of water quality standards."

(b) 

The certification must include the name and title of the person providing the signature; address and telephone number of the contracting firm; the address (or other identifying description) of the site; and the date the certification is made.

(c) 

The certification statement(s) shall become part of the SWPPP for the land development activity.

(d) 

As of June 1, 2008, all contractors must be certified by the Town of Montgomery or, alternatively, must be under the direct supervision of the certified professional who designed and certified the SWPPP.

(4) 

A copy of the SWPPP shall be retained at the site of the land development activity during construction from the date of initiation of construction activities to the date of final stabilization.

All land development activities shall be subject to the following performance and design criteria:

A. 

Technical standards. For the purpose of this § 235-10, the following documents shall serve as the official guides and specifications for stormwater management. Stormwater management practices that are designed and constructed in accordance with these technical documents shall be presumed to meet the standards imposed by this § 235-10:

(1) 

The New York State DEC Stormwater Management Design Manual as it now exists or as it may be amended, hereafter referred to as the “Design Manual.”

(2) 

New York Standards and Specifications for Erosion and Sediment Control (Empire State Chapter of the Soil and Water Conservation Society, 2004) as it now exists or as it may be amended, hereafter referred to as the “Erosion Control Manual.”

B. 

Water quality standards. No land development activity shall cause an increase in turbidity that will result in substantial visible contrast to natural conditions in surface waters of the State of New York.

A. 

Maintenance during construction.

(1) 

The applicant or developer of the land development activity shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the applicant or developer to achieve compliance with the conditions of this § 235-10. Sediment shall be removed from sediment traps or sediment ponds whenever their design capacity has been reduced by 50%.

(2) 

The applicant or developer or its representative shall be on site at all times when construction or grading activity takes place and shall inspect and document the effectiveness of all erosion and sediment control practices. Inspection reports shall be completed every seven days and within 24 hours of any storm event producing 0.5 inch of precipitation or more. The reports shall be delivered to the Stormwater Management Officer as soon as practical and also copied to the site log book.

B. 

Maintenance easement(s) and agreements. Prior to the issuance of any approval that includes a private stormwater management facility, the applicant or developer must execute a maintenance easement agreement that shall be binding on all subsequent landowners served by the stormwater management facility. The easement shall include all reasonable terms to effect the purposes of this § 235-10 and shall provide for access to the facility at reasonable times for periodic inspection or for remedial work at the owner's sole expense by the person or entity responsible for the operation and maintenance and/or by the Town of Montgomery, or its duly authorized designee, to ensure that the facility is maintained in proper working condition to meet the design standards and any other provisions established by this chapter. The easement agreement shall be prepared and recorded by the grantor at its sole expense in the office of the County Clerk after approval by the counsel for the Town of Montgomery.

C. 

Maintenance after construction. The owner or operator of permanent stormwater management practices installed in accordance with this § 235-10 shall be operated and maintained to achieve the goals of this § 235-10. Proper operation and maintenance also includes, as a minimum, the following:

(1) 

A preventive/corrective maintenance program for all critical facilities and systems of treatment and control (or related appurtenances) which are installed or used by the owner or operator to achieve the goals of this § 235-10.

(2) 

Written procedures for operation and maintenance and training new maintenance personnel.

(3) 

Discharges shall not exceed design criteria or cause or contribute to water quality standard violations in accordance with this § 235-10.

D. 

Drainage districts. The Town, in its sole discretion, may elect to create a drainage district per Article 12 or 12-A of the Town Law of the State of New York. If the Town Board selects this option, such district must be created prior to final approval of the project or, if a subdivision, prior to the filing of the subdivision map with the Orange County Clerk. Once such a district is created, the Town, in its sole discretion, may consolidate one or more drainage districts in accordance with the relevant provisions of the New York State Town Law.

A. 

Erosion and sediment control inspection.

(1) 

The Town of Montgomery Stormwater Management Officer may require such inspections as necessary to determine compliance with this § 235-10, including all professional certifications, and may either approve that portion of the work completed or notify the applicant where the work fails to comply with the requirements of this § 235-10 and the stormwater pollution prevention plan (SWPPP) as approved. To obtain inspections, the applicant shall notify the Town of Montgomery Building Department at least 48 hours before any of the following as required by the Stormwater Management Officer:

(a) 

Start of construction.

(b) 

Installation of sediment and erosion control measures.

(c) 

Completion of site clearing.

(d) 

Completion of rough grading.

(e) 

Completion of final grading.

(f) 

Close of the construction season.

(g) 

Completion of final landscaping.

(h) 

Successful establishment of landscaping in public areas.

(2) 

If any violations are found, the applicant and developer shall be notified in writing of the nature of the violation and the required corrective actions. No further work shall be conducted and no further permits or approvals shall be granted, except for site stabilization, until any violations are corrected and all work previously completed has received approval by the Stormwater Management Officer. The reasonable expenses of the Town's inspections shall be paid for by the owner per the Town's Fee Schedule, as amended from time to time.

B. 

Stormwater management practice inspections. The Town of Montgomery Stormwater Management Officer is responsible for conducting inspections of stormwater management practices (SMPs). All applicants are required to submit "as built" plans for any stormwater management practices located on-site after final construction is completed. The plan must show the final design specifications for all stormwater management facilities and must be certified by a professional engineer or a CPSWQ or a CPESC.

C. 

Inspection of stormwater facilities after project completion. Inspection programs shall be established on any reasonable basis, including, but not limited to: routine inspections; random inspections; inspections based upon complaints or other notice of possible violations; inspection of drainage basins or areas identified as higher than typical sources of sediment or other contaminants or pollutants; inspections of businesses or industries of a type associated with higher than usual discharges of contaminants or pollutants or with discharges of a type which are more likely than the typical discharge to cause violations of state or federal water or sediment quality standards or the SPDES stormwater permit; and joint inspections with other agencies inspecting under environmental or safety laws. Inspections may include, but are not limited to: reviewing maintenance and repair records; sampling discharges, surface water, groundwater, and material or water in drainage control facilities; and evaluating the condition of drainage control facilities and other stormwater management practices.

D. 

Submission of reports. The Town of Montgomery Stormwater Management Officer may require monitoring and reporting from persons or entities subject to this § 235-10 as are necessary to determine compliance with this § 235-10.

E. 

Right of entry for inspection. When any new stormwater management facility is installed on private property or when any new connection is made between private property and the public stormwater system, the maintenance easement and agreement described in § 235-10.8 above shall grant to the Town of Montgomery the right to enter the property at reasonable times and in a reasonable manner for the purpose of inspection as specified in Subsection C.

A. 

Construction completion guarantee. In order to ensure the full and faithful completion of all land development activities related to compliance with all conditions set forth by the Town of Montgomery in its approval of the stormwater pollution prevention plan, the Town of Montgomery may require the applicant or developer to provide, prior to final plan approval or as a condition of such approval, a cash escrow, or an irrevocable letter of credit from an appropriate financial or surety institution which guarantees satisfactory completion of the project and names the Town of Montgomery or its designee as the beneficiary. The security shall be in an amount to be determined by the Town of Montgomery based on submission of final design plans, with reference to actual construction and landscaping costs. The performance guarantee shall remain in force until the surety is released from liability by the Town of Montgomery, provided that such period shall not be less than one year from the date of final acceptance or such other certification that the facility(ies) has (have) been constructed in accordance with the approved plans and specifications and that a one-year inspection has been conducted and the facilities have been found to be acceptable to the Town of Montgomery or to its designee. Interest on cash escrow deposits shall not accrue to the stakeholder except in exceptional circumstances.

B. 

Maintenance guarantee. Where stormwater management and erosion and sediment control facilities are to be operated and maintained by persons or entities other than the Town of Montgomery, the developer, prior to construction, may be required to provide the Town of Montgomery with a cash escrow or an irrevocable letter of credit from an approved financial institution or surety to ensure proper operation and maintenance of all stormwater management and erosion control facilities both during and after construction, and until the facilities are removed from operation. If the developer or landowner fails to properly operate and maintain stormwater management and erosion and sediment control facilities, the Town of Montgomery or its duly authorized designee may draw upon the account to cover the costs of proper operation and maintenance, including engineering and inspection costs.

C. 

Record keeping. The Town of Montgomery may require persons or entities subject to this § 235-10 to maintain records demonstrating compliance with this § 235-10.

A. 

Notice of violation. When the Town of Montgomery determines that a land development activity is not being carried out in accordance with the requirements of this § 235-10, it may issue a written notice of violation to the landowner and to any other responsible persons or entities. The notice of violation shall contain:

(1) 

The name and address of the landowner and of the developer or applicant, if other than the landowner.

(2) 

The address, when available, or a description of the building, structure or land upon which the violation is occurring.

(3) 

A statement specifying the nature of the violation.

(4) 

A description of the remedial measures necessary to bring the land development activity into compliance with this § 235-10 and a time schedule for the completion of such remedial action.

(5) 

A statement of the criminal and civil penalty or penalties that shall or may be assessed against the person and/or entity to whom the notice of violation is directed.

B. 

Stop-work orders. The Town of Montgomery may issue a stop-work order for violations of this § 235-10. Persons or entities receiving a stop-work order shall be required to halt all land development activities, except those activities that address the violations leading to the stop-work order. The stop-work order shall be in effect until the Town of Montgomery confirms that the land development activity is in compliance and the violation has been satisfactorily addressed. Failure to address a stop-work order in a timely manner may result in civil, criminal, or monetary penalties in accordance with the enforcement measures authorized in this § 235-10.

C. 

Violations. Any land development activity that is commenced or is conducted contrary to this § 235-10 may be restrained by injunction or otherwise abated in a manner provided by law, and a court may award the Town all of its reasonable attorney's fees and court costs in connection with such action or proceeding.

D. 

Criminal penalties. In addition to or as an alternative to any other penalty provided herein or by law, any person who violates the provisions of this § 235-10 shall be guilty of a violation punishable by a fine not exceeding $350 or imprisonment for a period not to exceed six months, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine not less than $350 nor more than $700 or imprisonment for a period not to exceed six months, or both; and upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $700 nor more than $1,000 or imprisonment for a period not to exceed six months, or both. However, for the purposes of conferring jurisdiction upon courts and judicial officers generally, violations of this § 235-10 shall be deemed misdemeanors and, for such purpose only, all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.

E. 

Civil penalties.

(1) 

In addition to or as an alternative to any other penalty provided herein or by law, and pursuant to the authority delegated to the Town of Montgomery under the provisions of Town Law § 135(1) and Municipal Home Rule Law § 10(4)b, a violation of any of the provisions of this § 235-10 may result in a civil penalty as follows:

(a) 

First offense: civil penalty not to exceed $350.

(b) 

Second offense: civil penalty not to exceed $700.

(c) 

Third offense within five years: civil penalty not to exceed $1,000.

(2) 

Civil penalties may be imposed consecutively. Each week that a violation is found to have existed after service of the notice specified in Subsection A above shall constitute a separate, additional violation and may result in the imposition of a separate civil penalty.

(3) 

Right to be heard prior to the imposition of any civil penalty. No civil penalty shall be imposed under the provisions of this subsection unless and until the responsible party or parties have been provided with the opportunity to be heard and to present evidence in support of any claim that such penalty should not be imposed in whole or in part. The Town Board shall set forth by resolution the particular procedures attendant to the particular case to ensure that due process has been afforded the responsible party or parties. The Town Board may, in its sole discretion, designate a hearing officer to conduct such hearing, evaluate all of the evidence and submit a recommendation to the Town Board prior to the imposition of any civil penalty.

F. 

Withholding of certificate of occupancy. If any building or land development activity is installed or conducted in violation of this § 235-10, the Code Enforcement Officer may prevent the occupancy of said building or land.

G. 

Restoration of lands. Any violator may be required to restore land to its undisturbed condition. In the event that restoration is not undertaken within a reasonable time after notice, the Town of Montgomery may take necessary corrective action, the cost of which, including all the Town's reasonable attorney's fees and other reasonable expenses, shall become a lien upon the property and shall be collected in the same manner as other Town taxes.

The Town of Montgomery may require any person undertaking land development activities regulated by this § 235-10 to reimburse the Town's reasonable costs for review of SWPPPs, inspections, or SMP maintenance performed by the Town of Montgomery or performed by a third party for the Town of Montgomery, all per the Town's Fee Schedule as amended from time to time.

A. 

In all districts:

(1) 

Accessory buildings, other than minor accessory buildings, shall not be placed within a required front, side or rear yard.

(2) 

A private garage may be constructed as a structural part of a main building, provided that when so constructed the garage walls shall be regarded as the walls of the main building in applying the front, rear and side yard regulations of this chapter.

(3) 

Accessory buildings, other than minor accessory buildings allowed in a required side or rear yard, shall not be placed within a required front, side or rear yard.

(4) 

An access driveway may be located within a required yard.

(5) 

Required accessory off-street parking areas or truck loading space shall not be encroached upon by buildings, open storage, or any other use. All such parking areas shall be provided with a turnaround so that vehicles are not required to back out into a street, except where otherwise specifically approved by the Planning Board for properties having access to minor streets and/or Town streets or highways.

(6) 

The storage of manure or odor- or dust-producing substances as accessory uses shall not be permitted within 50 feet of any side or rear lot line or within 100 feet of any front lot line.

(7) 

The following provisions shall apply to all forms of animal husbandry except for animals which are kept as household pets:

(a) 

All shelters provided for livestock and fowl shall be at least 50 feet from any property line and 150 feet from front lot line, and all shelters provided for fur-bearing animals shall be at least 100 feet from any property line, except that an existing shelter may remain and be added to, provided that the addition shall not encroach on a required yard.

(b) 

The disposal of animal wastes shall be provided for in such a manner as to prevent any nuisance or sanitary problems.

(c) 

The Building Inspector/Code Enforcement Officer shall issue a violation under this chapter for inadequate fencing for the second fence breach occurring for any one property within any one twelve-month period where both such breaches are a result of inadequate construction or maintenance of any portion of such fence.

(d) 

A minimum lot size of three acres is required for general agricultural uses, including one head of livestock, with an additional 1/2 acre required for each additional head of livestock up to 10 acres. Properties in excess of 10 acres have no limitations other than as elsewhere set forth in this chapter and other than the requirement that all farming practices be in accord with sound agricultural practices as from time to time determined by the Building Inspector/Code Enforcement Officer of the Town of Montgomery and/or by the New York State Department of Agriculture and Markets.

(e) 

All animals shall be contained by fence or restrained within the boundaries of the owner's property.

B. 

In residential agriculture and residence districts, accessory off-street parking areas shall not be placed within a required front yard, nor within a required side yard.

C. 

In nonresidential districts. Unless any other provision of this chapter provides a specific provision to the contrary, accessory off-street parking areas may be placed within required front, side or rear yard, but may not be closer than 20 feet to a front lot line or closer than 10 feet to a side and rear lot line to provide a buffer and to allow for landscaping as may be required.

In all districts, the lot frontage at the street line shall not be less than 80 feet at any point between the front lot line and the point at which the lot width is measured as elsewhere set forth in this chapter, except in a Planned Adult Community (PAC) and/or in a clustered subdivision where the lot frontage requirements shall be prescribed by the Planning Board during the review of those types of projects. Additionally, the area of each lot between the building site and the public street must contain land that is usable for customary vehicular access to and from the public street.

A. 

Nothing herein contained shall restrict the height of agricultural accessory buildings such as barns and silos or of the following accessory structures: church spires, cupolas, domes, belfries, clock towers, flagpoles, chimney flues, elevators or stair bulkheads, water tanks, air conditioning or heating units, stage towers or scenery lofts, or similar roof-mounted rails, parapets, screens or structures, exclusive of utility transmission lines, utility towers, radio towers, telecommunications towers and television towers.

B. 

No building or structure erected pursuant to Subsection A to a height in excess of the height limit for the district in which it is situated shall:

(1) 

Have a lot coverage in excess of 10% of the lot area.

(2) 

Be used for residence or tenancy purposes.

(3) 

Have any sign, nameplate display or advertising device of any kind whatsoever inscribed upon or attached to such building or structure.

(4) 

Have a roof coverage in excess of 15% of the roof area.

A. 

The following accessory structures may be located in any required front or rear yard:

(1) 

Awning or movable canopy not exceeding 10 feet in height.

(2) 

Open arbor or trellis.

(3) 

Retaining wall, fence or masonry wall, pursuant to § 235-11.7.

(4) 

Unroofed steps, patio or terrace not higher than one foot above ground level.

(5) 

Freestanding signs as provided elsewhere in this chapter.

B. 

The space in a required front yard shall be open and unobstructed except for structures provided for in Subsection A and the following:

(1) 

An unroofed balcony, projecting not more than eight feet into the yard.

(2) 

Other projections specifically authorized in Subsections C and D.

C. 

Every part of a required yard shall be open to the sky unobstructed except for: retaining walls, minor accessory buildings, the ordinary projection of sills, belt courses, and for ornamental features projecting not to exceed six inches. Cornices and eaves shall not project more than 18 inches.

D. 

Open or lattice-enclosed fireproof fire escapes or stairways required by law projecting into a yard not more than four feet and the ordinary projections of chimneys and pilasters shall be permitted by the Building Inspector when placed so as not to obstruct light and ventilation.

E. 

Where a lot extends through from street to street, the applicable front yard regulations shall apply on both street frontages.

F. 

In all residential agricultural and residential districts where 25% of the buildings on the same side of a street as a proposed new building, and within 200 feet thereof, have a front yard setback greater than the minimum provided herein, then the minimum front yard setback shall be equal to the average setback distance of the other buildings, but in no event shall the required setback distance be greater than 10 feet more than the minimums provided in this chapter. This section shall not apply to the required side yard on the street side of a building.

G. 

Front yard setback overlay district for various public highways in all districts.

(1) 

Unless a greater setback requirement is prescribed in the Table of Dimensional Regulations for Residence and Agricultural Districts, Row 6, and the Table of Dimensional Regulations for Business and Industrial Districts, Row 6,

Editor's Note: The Tables of Dimensional Regulations are included at the end of this chapter.
front yards abutting all county and state highways, Lake Osiris Road, Berea Road, Barron Road, Neelytown Road, Goodwill Road, Chandler Lane, Kings Hill Road, Stone Castle Road, North Drury Lane, and Beaver Dam Road shall be at least 60 feet in depth, except where the majority of existing primary structures on either side of the road within 300 feet from the intersection of the nearest property line and street line is of a lesser average depth. In such cases, the front yard depth shall be 50 feet or the average of all lot depths within said 300 feet, whichever is greater.

(2) 

For all new development projects on property fronting on the following public highways, Route 17K from the Town of Newburgh west to the Village of Montgomery, Route 208 from the Village of Walden south to Morrison Place and Drury Lane from Route 17K south to the Town of Newburgh, the portion of the front yards located within 55 feet of the center lines of such roads 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 fifty-five-foot dimension shall be extended to 65 feet for all properties on Route 17K, Route 208 and Drury Lane which lie within 350 feet of the intersecting center lines of the following street intersections:

(a) 

Route 208 and Route 17K.

(b) 

Route 208 and Coleman Road.

(c) 

Route 208 and Bracken Road.

(d) 

Route 208 and Goodwill Road.

(e) 

Route 208 and Bailey Road.

(f) 

Route 208 and Route I-84 ramps.

(g) 

Route 208 and Henry Henning Drive.

(h) 

Route 208 and Neelytown Road (CR 99).

(i) 

Route 17K and Bracken Road.

(j) 

Route 17K and Berea Road and Barron Roads.

(k) 

Route 17K and Coldenham Road (CR 75).

(l) 

Route 17K and Browns Road and Maple Avenue.

(m) 

Route 17K and Stone Castle Road and realigned (South) Drury Lane.

(n) 

Route 17K and (South) Drury Lane (CR 54) and North Drury Lane.

(o) 

Realigned (South) Drury Lane and Route 17K.

In all residential zoning districts, any perimeter or similar fence shall meet the following requirements:

A. 

The height shall not exceed six feet along or near side and/or rear lot lines nor shall a fence be higher than four feet along or near a front lot line or adjacent to a required front yard. For corner lots, no fence shall be higher than four feet for any portion of the lot that fronts on a public street other than a restricted access highway, whereby a fence may be installed up to six feet in height.

B. 

The minimum distance between a fence and a lot line shall be 18 inches unless it is established to the satisfaction of the Town of Montgomery Building Department that the fence is intended to be a common fence. In the case of a common fence, the Building Department may require proof of a recorded agreement between the contiguous lot owners to ensure future maintenance and repair of the common fence.

C. 

No fence shall be erected unless it is in compliance with the provisions of § 235-12.7D (regarding sight distance for access driveways).

D. 

Fences shall not consist of barbed wire and/or include the use of electric current unless to contain animals as elsewhere permitted by this chapter.

E. 

The provisions of this entire section with the exception of Subsection C above, shall not apply to farm operations or the keeping of livestock where elsewhere permitted by this chapter.

A. 

In the layout of a development of garden apartments or other multifamily houses on a lot or tract of land, a horizontal distance of not less than 35 feet or 2/3 the height of the higher building, whichever is the greater, shall be maintained between all main buildings and between main buildings and major detached accessory buildings or groups of accessory buildings, such as a garage compound having a ground coverage equal to that of a principal building.

B. 

The above requirement of Subsection A need not exceed 35 feet when the top of one building is less than eight feet above the level of the first floor of the other building.

C. 

Minor accessory buildings shall meet the requirements of § 235-11.1.

On a corner lot in any district within the triangular area determined as provided in this section, no wall or fence or other structure (except agricultural open wire fence) shall be erected to a height in excess of two feet; and no vehicle, object or any other structure of a height in excess of two feet shall be parked or placed; and no hedge, shrub or other growth shall be maintained at a height in excess of two feet, except those trees whose branches are trimmed away to a height of at least 10 feet above the curb level or pavement level where there is no curb shall be permitted. Such triangular area shall be determined by two points, one on each intersecting pavement line, each of which points is 50 feet from the intersection of such street lines.

A. 

Statement of purpose. The requirements contained in this section are designed to promote and protect the public health, to prevent overcrowded living conditions, to guard against the development of substandard neighborhoods, to conserve established property values, and to contribute to the general welfare.

B. 

Minimum schedule for floor area. Every dwelling or other building devoted in whole or in part to a residential use which is hereafter erected or converted to accommodate additional families shall provide a minimum floor area per family on finished floors with clear ceiling height of not less than seven feet six inches in conformity with the following schedule and with other provisions of this section. The minimum stipulated herein shall be deemed to be exclusive of unenclosed porches, breezeways, garage areas and basement and cellar rooms or areas.

Type of Residence Building Minimum Required Floor Area Per Family (square feet)
Single- and two-family detached dwelling 900
Multiple dwelling 500
Accessory dwelling 400 square feet of heated living space or such greater minimum area as may be required under applicable federal, state and local laws, codes, rules and regulations; with a maximum of the lesser of 750 square feet of heated living space or 33.33% of the heated living space of the primary residence
C. 

First floor area of a dwelling. The minimum first floor enclosed area of a dwelling, exclusive of garage or other accessory building, shall be 750 square feet, and its least overall dimension shall be 20 feet.

In order to assure an orderly and compatible relationship between residential agriculture and residence districts and business or industrial districts along their common boundary lines, the following requirements shall be met in the listed districts along such boundaries.

A. 

Minimum required transitional side and rear yards within nonresidential districts adjoining residential agriculture and residence districts shall be as follows:

(1) 

In the OB, OP, B-4, ID, I-1, I-2, I-3 and I-4 Districts: 50 feet.

(2) 

In the B-1 District: 30 feet.

B. 

Minimum required screening within required transitional side and rear yards may be a six-foot-high stockade-type fence or equal to be erected and maintained by the nonresidential property owner along the side and rear property lines; provided, however, that where the transitional yard area is 50 feet or more, such screening may be a planting area six feet wide and eight feet high. The stockade-type fence may be substituted with an evergreen screen and/or berm at the discretion of the Planning Board and/or the Building Inspector, as the case may be.

C. 

All storage materials and storage yards located within 500 feet of a residential district or public street shall be completely enclosed or fully screened from view by evergreens or architecturally integrated fences.

D. 

Parking and/or buildings and/or storage areas may not be located within a transitional yard.

A private swimming pool shall not be located, constructed or maintained on any lot or land area except in conformity with the following requirements:

A. 

Such a pool shall not be located in any required side yard or required front yard.

B. 

The entire portion of the premises upon which such a pool is located shall be entirely enclosed with a good quality chain-link wire or equally sturdy fence of not less than four feet in height with a maximum vertical clearance to a grade of two inches.

C. 

Every gate or other opening in the fence enclosing such a pool shall be kept securely closed and locked at all times when said pool is not in use. Such gate shall have a self-closing/self-latching mechanism.

D. 

Such a pool shall not be less than 10 feet from side and rear lot lines, and on lots with a width of 50 feet or less, the pool shall be located midway between the side lot lines.

E. 

If the water for such a pool is supplied from a private well, there shall be no cross-connection with the public water supply system.

F. 

If the water for such a pool is supplied from the public water supply system, the inlet shall be above the overflow of said pool.

G. 

Such a pool shall be constructed, operated and maintained in compliance with the applicable provisions of the New York State Sanitary Code relating to private swimming pools, and to 9 NYCRR Part 720 of the New York State Uniform Fire Prevention and Building Code, as amended.

H. 

No permit shall be granted for the installation or construction of said swimming pool unless the plans of said pool shall meet the minimum construction requirements of the municipality, and unless the municipal engineer, or a licensed professional engineer of New York State, has certified that the drainage of such a pool is adequate and will not interfere with the public water supply system, with existing sanitary facilities or with the public streets.

I. 

Underwater lighting and other electrical systems shall only be installed in accordance with the provisions of the National Electrical Code for such lighting and systems.

These uses, permitted in all districts in addition to other permitted, special exception or accessory uses on the same lot, consist of water and sewer pump stations, electric distribution boxes, "hand holds," telephone distribution boxes and subscriber loop carriers.

A. 

Such facilities must be located on private property and at least 20 feet off the traveled way and center line of a drainageway adjacent to a public road.

B. 

Such facilities shall be at least five feet from a side or rear lot line.

C. 

Site plan approval shall be required, and the applicant may be required to establish appropriate screening as directed by the approval agency.

D. 

All such uses shall be located at least 125 feet from the point at which center lines of two or more streets intersect.

E. 

Should such uses be proposed during the normal subdivision or site plan approval process for a principal permitted use, approval may be granted by the Planning Board during such process and no separate application to the Planning Board shall be required.

F. 

Such uses shall not include underground water, sewer, gas, electric, cable TV or telephone lines required to serve as distribution lines for adjacent parcels, nor shall they include utility distribution poles or light poles which may be located within public rights-of-way subject to the Highway Department or local legislative body having jurisdiction.

Off-street parking and truck loading space requirements shall be provided for and kept available as an accessory use to all permitted and special exception uses of buildings, structures and lots in amounts of not less than those specified in this § 235-12.

A. 

The requirements for a single use (e.g., a one-family dwelling or a retail store) shall be determined directly from the schedule of such requirements which is a part of this § 235-12.

B. 

The requirements for a combination use made up of several component uses (e.g., a bowling alley combined with an auditorium and a restaurant and bar, or a retail store combined with an office building) shall be determined by establishing the requirements for each component use from the schedule of such requirements which is part of this § 235-12 and adding them together.

C. 

When the required number of spaces is determined to result in a fraction, it shall be increased to the next highest whole number.

D. 

If the use is not specifically listed in the schedule of such requirements, the requirement shall be the same as for the most similar listed use.

E. 

A garage or carport may be used to meet the requirements of this § 235-12. A driveway may only be used to meet the requirements of this § 235-12 where it serves a single- or two-family dwelling or accessory dwelling.

F. 

Uses which require approval pursuant to the special exception use procedure set forth in § 235-15.4 may be required to provide off-street parking spaces in excess of the requirements of this § 235-12 as indicated in § 235-15.4.

Off-street parking space requirements for residential uses shall be as follows:

Use Required Number of Spaces
Single-family and two-family dwelling units 2 per dwelling unit
Multiple dwelling 2 per dwelling unit
Accessory dwelling 1 additional per accessory dwelling unit
Residential membership club or fraternity 1 per residence unit plus 1 per each 2 employees on the premises at one time

Off-street parking space requirements for nonresidential uses shall be as follows:

Use Required Number of Spaces
Animal hospital 1 per 200 square feet of floor area
Auditorium, church, convention hall, stadium, theater, studio or other place of public assembly not otherwise classified 1 per 3 permanent seats or 1 per each 40 square feet of seating area where fixed seating is not provided
Bank, savings and loan association See requirements for “offices, office buildings”
Bowling alley 3 per alley
Drive-in facility or outdoor sales lots 1 per each 600 square feet of lot area
Funeral home 1 per 40 square feet of public room floor area
Furniture and heavy appliance stores 1 per 500 square feet of gross leasable floor area
Gasoline station, parking garage, repair garage Sufficient parking spaces for all vehicles stored or being serviced at any one period of time plus a minimum of 5 additional spaces
Home occupation, home professional office 2 per 150 square feet of area given over to this component of the land use, plus 1 for each additional 150 square feet or fraction thereof, but in no case fewer than 2 spaces
Hospital 1 1/4 per bed plus one per each 2 employees on the premises at any one period of time
Hotel, motel 1 per guest bedroom plus 1 per each 2 employees on the premises at any one period of time
Manufacturing or industrial establishment, research institute or laboratory Parking area reservation equivalent to the total ground coverage of the building, with a minimum of 2 improved spaces per 3 employees on the premises at any one period of time, with a minimum of 2 spaces
Nursing home 1 per each 3 beds plus 1 per each 2 employees on the premises at any one time
Offices, office building 1 per 200 square feet of building floor area
Office buildings in excess of 20,000 square feet of gross leasable floor area 1 per 300 square feet of gross leasable floor area
Public or semi-public art gallery, library or museum See requirements for auditorium, etc.
Restaurant, club 1 per 4 permanent seats or floor area equivalent
Retail stores, shopping centers and personal service stores 1 per 150 square feet of gross leasable floor space
Retail stores in excess of 25,000 square feet of gross leasable floor area 1 per 200 square feet of gross leasable floor area
School 1 per employee plus 1 per each 8 students in the 12th grade or above or the parking requirement for the auditorium or gymnasium component of the use, whichever is greater
Shop for custom work 1 per 250 square feet of floor area
Shopping centers in excess of 25,000 square feet of gross leasable floor area 1 per 225 square feet of gross leasable floor area
Truck terminal, wholesaler, warehouse or distribution center Sufficient parking for all trucks, truck trailers and truck tractors stored or being serviced at any one period of time, plus required parking for office areas, plus 2 per 3 employees on duty or on the premises at any one time

Every building or structure or lot used for nonresidential purposes shall be provided with off-street truck loading spaces in accordance with the following schedule:

Square Feet of Floor Area Required Number of Spaces
Under 25,000 1
25,000 to 39,999 2
40,000 or more 1 additional space for each 40,000 square feet in addition to the first 40,000 square feet
A. 

Accessory private garages shall not be designed or utilized to rent parking spaces to persons living off the premises. Private garages or other accessory structures shall not be utilized for other than private uses unless otherwise authorized elsewhere in this chapter.

B. 

Not more than one parking space per dwelling unit may be rented to persons living off the premises in the case of single- or two-family dwelling uses, nor more than one parking space per each two dwelling units may be rented to persons living off the premises in the case of any other residence use.

C. 

Not more than one commercial vehicle shall be housed or parked in a private garage or off-street parking area. Such commercial vehicle shall not exceed a gross motor vehicle weight of 10,000 pounds or length of 25 feet; provided that there shall be no limitation on the number of agricultural vehicles permitted as accessory equipment to a farm use.

A. 

Access driveways for parking garages, public parking areas, filling stations, repair garages, or trucking stations may have separate or combined entrances and exits.

B. 

Every entrance or exit driveway shall have a minimum unobstructed width of 10 feet. Every combined entrance and exit driveway shall have a minimum unobstructed width of 20 feet.

C. 

The intersection of entrance or exit driveways with the public street shall have the same corner clearances as prescribed for the intersecting street in § 235-11.7.

D. 

Sight distance for all access driveways shall conform to the following specifications: Access driveways onto state and county roads shall have a clear sight distance after improvements to the right-of-way as required by the Planning Board or controlling highway agency of 600 feet for state highways, 500 feet for county and collector streets, and 300 feet for minor streets, including all Town streets and Town highways. The minimum standards set forth above shall be measured from a point clearly shown on the plan from the edge of the traveled way of the road or street to which the driveway connects.

A. 

All accessory off-street parking and truck loading areas shall be located in accordance with the provisions of § 235-11.1.

B. 

The physical improvements of off-street parking and truck loading areas shall include:

(1) 

Curbs, paving, sidewalks and drainage facilities complying with the standards established in municipal ordinances, regulations or specifications.

(2) 

Adequate lighting in public parking areas to assure the general safety and convenience of the public.

(3) 

Appropriate screening for the protection of adjacent properties, particularly along zone district boundary lines as provided for in § 235-11.9.

C. 

All aisles within parking areas shall have a minimum width of 24 feet when the parking spaces are at an angle of 90° with the driveway; 18 feet when the parking spaces are at angle of 60°; and 12 feet when the parking spaces are at angle of 45°.

D. 

Aisles and turning areas shall have adequate radii to assure ease of mobility, ample clearance, and convenient access and egress.

E. 

Center-line gradients of aisles shall not exceed 8%.

F. 

Accessory off-street parking areas shall be marked off into parking spaces with a minimum width of nine feet and a minimum length of 20 feet; or, in the case of parking spaces for trucks or special equipment, parking spaces of a minimum size are to be determined by the municipality based on the nature of the parked vehicle.

G. 

An accessory off-street truck loading space shall have a minimum width of 12 feet, a minimum length of 25 feet, and a minimum clear height of 14 feet. The related aisle shall have the same minimum width and clear height.

A. 

Existing buildings and uses are exempt. The provisions of this section shall not apply to any building or structure or lot lawfully in use at the effective date of this chapter, whether continued as a permitted or legal nonconforming use, or thereafter converted or changed without enlargement to a different lawful use having the same parking and truck loading requirements.

B. 

Within an established municipal parking district where the municipality has, as a matter of public policy, taken the responsibility for providing adequate off-street parking facilities for all uses in the district, the off-street parking space requirements stipulated in this § 235-12 shall be automatically waived.

C. 

The Zoning Board of Appeals, subject to the applicable provisions of § 235-15.3, may waive the requirements in whole or part, for the off-street parking or truck loading spaces stipulated in this § 235-12.

A. 

The following schedule of permitted signs shall apply to each premises according to the district in which it is located on the Zoning Map, whether it be used for a permitted use or for a special exception use:

Permitted Signs in Residence and Agriculture Districts
Type of Sign Number Permitted
Professional or announcement sign One on each public street frontage, pursuant to § 235-13.2
Personal identification sign having an area not greater than 2 square feet Permitted
Real estate "For Sale" or "For Rent" sign or construction sign One on each public street frontage for single lots or buildings; two subdivision signs on each public street frontage for each approved subdivision, pursuant to § 235-13.5A
Temporary sign Pursuant to § 235-13.5B
Permitted Signs in Business Districts
Type of Sign Number Permitted
Professional or announcement sign One on each public street frontage pursuant to § 235-13.2
Personal identification sign having an area not greater than 2 square feet One wall sign and one detached or ground sign on each public street frontage, pursuant to § 235-13.3
Real estate "For Sale" or "For Rent" sign or construction sign One on each public street or frontage for single lots or buildings; two subdivision signs on each public street frontage for each approved subdivision, pursuant to § 235-13.5A
Temporary sign Pursuant to § 235-13.5B
Permitted Signs in Industrial and Interchange Districts
Type of Sign Number Permitted
Professional or announcement sign One on each public street frontage, pursuant to § 235-13.2
Personal identification sign having an area not greater than 2 square feet One wall or one detached or ground sign facing each street from which access is provided, pursuant to § 235-13.4
Real estate "For Sale" or "For Rent" or construction sign One on each public street or frontage for single lots or buildings; two subdivision signs on each public street frontage for each approved subdivision, pursuant to § 235-13.6A
Temporary sign Pursuant to § 235-13.6B
B. 

Special regulations for all permitted business industrial signs.

(1) 

Sign construction specifications: All signs which exceed 15 feet in height shall require plans approved by a licensed professional engineer or architect and:

(a) 

Supports on lighted signs shall be steel pipe, tubing or I-beams;

(b) 

Metal facings shall not be less than 24 gauge;

(c) 

Plastic facings shall not be less than 1/8 inch thick up to 32 square feet, 3/16 inch up to 250 square feet, and 1/4 inch over 250 square feet, provided bumpers are spaced 48 inches on center within the interior of sign cabinet; and

(d) 

Electrical wiring shall be in accordance with Underwriter Laboratories specifications and sign shall bear the Underwriter Laboratories label.

(2) 

One identification-directional sign with an area of not more than eight square feet per side shall be permitted at each point of access to a lot, set back at least five feet from the property line, which shall not obstruct the view of exiting motorists and shall not exceed 10 feet in height.

(3) 

On-site directional signs shall not exceed 10 feet in height unless mounted on a building or structure other than a sign structure. Such signs shall not exceed eight square feet in area.

(4) 

More than wall sign may be permitted per wall surface, provided the total sign area of all signs on the wall does not exceed the total sign area permitted in §§ 235-13.3 through 235-13.5.

(5) 

Signs may be interior-lighted with nonglaring lights or may be illuminated by shielded floodlights; provided, however, that red and green lights shall be set back at least 75 feet from the point of intersection of the street lines at a street corner; and further provided that intermittent or flashing lights shall not be used on or in any sign or in conjunction with any sign. Moving or animated signs shall be prohibited.

C. 

Regulations for special permitted business and industrial signs.

(1) 

The Planning Board may issue a special permit for business or industrial ground-mounted signs which do not comply with these regulations only when such sign, if it were to comply, could not be seen by a motorist for the time required as shown on Column Two of the table below for the type of road indicated on Column One due only to terrain conditions:

1 2 3 4 5
Road Type Reaction Time (seconds) Speed (mph) Sight Distance (feet) Minimum Letter Height (inches)
Expressway 15 55 1,200 21
4 lanes 10 55 810 17
4 lanes 10 50 730 15
4 lanes 10 45 660 13
4 lanes 10 40 590 11
2 lanes 8 55 645 14
2 lanes 8 50 590 12
2 lanes 8 45 530 10
2 lanes 8 40 470 9
2 lanes 8 35 410 8
2 lanes 8 30 350 7
2 lanes 8 25 290 5
(2) 

The applicant shall agree to make the letters no smaller than the minimum size shown in the table above and no larger than four feet in height, and limit the message to no more than 16 message units in four lines of words, with no more than 26 letters per line. For the purpose of this subsection, a message unit is a symbol or a syllable.

(3) 

Any sign permitted by the Planning Board shall be the minimum size necessary for the purposes stated by the applicant, in the opinion of the Planning Board.

A. 

Professional signs or announcement signs for home professional offices or home occupations shall bear only the name and profession or occupation of the resident. Such sign shall have a maximum area of two square feet and may be located on the building wall or in the required front yard, provided that it is set back at least 15 feet from all property lines and is not more than six feet above the natural ground level at that point.

B. 

A church or other place of worship may have one announcement sign not over 12 square feet in area on each public street frontage of its property, either fixed on the main wall of the building or located in the required front yard, provided that it is set back at least 15 feet from the front property line and at least 25 feet from all other property lines.

C. 

A parish house, club, school, or public or semipublic building may have one announcement sign not over six feet in area on each public street frontage of its property fixed on the main wall of its building.

D. 

Such signs may be double-faced.

E. 

Such signs may be lighted only by shielded light sources attached to the sign or ground lights with appropriate shielding of the fixtures.

The following supplemental regulations apply to business district identification signs:

A. 

A wall identification sign shall be attached to or incorporated in the building wall. Such sign shall have:

(1) 

A maximum area of two square feet for each horizontal foot of building wall on which it is mounted.

(2) 

A maximum width of 75% of the building wall's horizontal measurement; except where such horizontal measurement is 20 feet or less, the maximum width may be 90% of such a measurement.

(3) 

A maximum projection of 12 inches from the face of the building wall to which the sign is attached.

B. 

A detached or ground identification sign may be erected where the building is set back from the street line a distance of 40 feet or more. Such sign shall have:

(1) 

A maximum area of 100 square feet. For double-faced signs the maximum area shall be 100 square feet per side.

(2) 

A maximum height of 20 feet measured vertically from the center line of the nearest street.

(3) 

Adequate clear space provided between the sign board and the ground to allow for visibility in vehicles between street and drives. Necessary supports may extend through such clear space. [See § 235-13.5B(2).]

(4) 

A setback of at least 20 feet from any property line, except if the average front setback of existing buildings within the same block is less than 10 feet, then the average setback so established shall be applied to such sign.

C. 

Identification signs may be interior-lighted with nonglaring lights or may be illuminated by shielded floodlights; provided, however, that red and green lights shall be set back at least 75 feet from the point of intersection of the street lines at a street corner; and further provided that intermittent or flashing lights shall not be used on or in any sign or in conjunction with any sign. Moving or animated signs shall be prohibited.

The following supplemental regulations apply to industrial district identification signs:

A. 

One wall identification sign or one detached or ground identification sign facing each street from which access to the lot is provided announcing the name of the company or products manufactured on the premises. Such sign shall have:

(1) 

A maximum area of two square feet for each horizontal foot of building wall on which it is mounted.

(2) 

A setback of at least 1/2 the depth of the required front yard.

(3) 

A maximum height measured vertically from the center line of the nearest street of 18 feet, if the building is less than 18 feet, or the height of the building, with a maximum height of all signs being 35 feet.

B. 

One identification sign at each point of access to the lot with an area of not more than two square feet.

C. 

Identification signs may be interior-lighted with nonglaring lights or may be illuminated by shielded floodlights; provided, however, that red and green lights shall be set back at least 75 feet from the point of intersection of the street lines at a street corner; and further provided that intermittent or flashing lights shall not be used on or in any sign or in conjunction with any sign. Moving or animated signs shall be prohibited.

The following supplemental regulations apply to interchange development district identification signs:

A. 

Business uses.

(1) 

Wall identification signs as permitted in § 235-13.3A.

(2) 

A detached or ground identification sign may be erected where the building is set back from the street line a distance of 40 feet or more. Such sign shall have:

(a) 

A maximum area of 100 square feet per side of a double-faced sign or a single-faced sign intended to be read by motorists traveling along Route 208 or any Town or county road.

(b) 

A maximum area of 300 square feet per side of a double-faced sign intended to be read by motorists traveling along Interstate Route 84.

(c) 

A maximum height of 25 feet measured from the center line of the nearest street to the top of the sign where the sign is intended to be read by motorists traveling along Route 208, Route 17K, or any Town or county road.

(d) 

A maximum height of 50 feet measured from the center line of the nearest street to the top of the sign where the sign is intended to be read by motorists traveling along Interstate Route 84.

(e) 

Adequate clear space between the sign board and the ground, provided that necessary supports may extend through such clear space.

B. 

Industrial uses. One wall identification sign or one detached or ground identification sign facing each street from which access to the lot is provided announcing the name of the company or products manufactured on the premises. Such signs shall have:

(1) 

A maximum area of two square feet for each horizontal foot of building wall on which they are mounted.

(2) 

A maximum height, measured vertically from the center line of the nearest street, of 18 feet for a ground-mounted sign.

(3) 

A setback of at least 1/2 the depth of the required front yard.

A. 

Real estate or construction signs shall be set back at least 15 feet. Such signs shall have a minimum area of eight square feet, except that subdivision signs shall have a maximum area of 24 square feet, and shall not be illuminated.

B. 

Temporary directional signs indicating the location of a real estate subdivision shall be permitted as special exception uses under the provisions of § 235-15.4 for a period of one year during the active selling of subdivision properties. Additional periods of one year shall be the subject of an application to the Planning Board.

A. 

The area of a sign shall be determined by the smallest rectangle that encompasses all of the letters or symbols which make up the sign together with any background of a different color or material than the general finish of the building, whether painted or applied.

B. 

In no case shall lighted signs be so located that they constitute a hazard to vehicular traffic.

C. 

The outlining by direct illumination of all or part of a building such as a gable, roof, wall, side or corner shall be prohibited.

D. 

Temporary or permanent signs resting on or attached to vehicles or other movable objects shall not be used as a means to circumvent the provisions of this chapter.

A. 

These provisions shall apply to all buildings or structures or use of a building or structure or lot lawfully existing prior to the effective date of the original zoning law, or of subsequent amendments, revisions or reenactments of such law, which do not conform to the provisions of said original zoning law, or such revisions or reenactments on their effective dates.

B. 

Each business or industrial use which under this chapter or any amendments thereto requires a special use permit and which use was in existence on the date of the enactment of this chapter or amendments thereto, must file with the Planning Board a certificate of substantial compliance with this chapter or any amendments thereto within one year from the enactment of this chapter or any amendments thereto. The user shall thereafter continue such use in the manner permitted by the Planning Board. Failure to file the certificate of substantial compliance in the manner prescribed above shall deem the use discontinued.

No unlawful building or structure, or unlawful use of a building or structure or lot existing at the effective date of this chapter or any amendments thereto shall be deemed to be a nonconforming building, structure or use. Any applicant for any land use approval, including, without limitation, a building permit, subdivision, special exception use, site plan, zone change and/or variance must indicate in writing at the time of application all uses which it believes would be entitled to nonconforming status together with all data in support of such claim. The failure of the applicant to so indicate in writing shall form a presumption that nonconforming uses do not exist on the property. All such application forms shall be modified to comply with the requirements of this § 235-14.

A. 

Any lawful use occupying any building or structure or upon the lot or land at the time of the effective date of this chapter, or any amendment thereto, which does not comply after the effective date of this chapter, or any amendment thereto, with the use regulations of the district in which it is situated may be continued in the building, structure, lot or land so occupied in accordance with § 235-14.1A, except as provided in § 235-14.7.

B. 

A building or structure used by a nonconforming use may not be reconstructed, structurally altered, restored or repaired to an extent exceeding 50% of the replacement cost of such building or structure, exclusive of foundations, unless the use of such building or structure is changed to a conforming use.

C. 

A nonconforming building or structure that is not devoted to a nonconforming use may be reconstructed, structurally altered, restored or repaired in whole or in part, and the provisions of Subsection B above shall not apply, except that the degree of nonconformity shall not be increased.

D. 

A nonconforming lot separately owned and not adjoining any lot or land in the same ownership at the effective date of this chapter may be used, or a building or structure may be erected on such lot for use, in accordance with all other applicable provisions of this chapter or any amendment thereto, provided that proof of such separate ownership is offered in the form of a title search.

E. 

An existing building designed and used for a conforming use but located on a nonconforming lot, whether the building is conforming or nonconforming with respect to lot coverage and minimum yard requirements, may be reconstructed, structurally altered, restored or repaired in whole or in part, except that the degree of nonconformity shall not be increased.

A nonconforming use shall not be enlarged or extended except as provided in § 235-15 (regarding variances).

A nonconforming use shall be changed only to a conforming use, except as otherwise provided.

A. 

A nonconforming use shall be deemed to have been abandoned:

(1) 

When it is changed to a conforming use.

(2) 

In cases where such nonconforming use is of a building or structure designed for such use when it has been discontinued for a period of 12 consecutive months. The intent of the property owner shall be irrelevant to the issue of discontinuance of a nonconforming use.

(3) 

In cases where such nonconforming use is of a building or structure not designed for such use, or is of a lot or land whereon there is no consequential building or structure devoted to such use, when it has been discontinued for a period of six consecutive months. The intent of the property owner shall be irrelevant to the issue of discontinuance of a nonconforming use.

B. 

A nonconforming use that has been abandoned shall not thereafter be reinstated.

A. 

A nonconforming structure or nonconforming use may be subject to compulsory termination by the municipal legislative body when it is found detrimental to the conservation of the value of surrounding land and improvements or to future development of surrounding lands, and therefore is tending to deteriorate or blight the neighborhood.

B. 

In ordering the compulsory termination of a nonconforming structure or nonconforming use, the Town Board will establish a definite and reasonable amortization period during which the nonconforming use may continue while the investment value decrement resulting from the termination is amortized. Determination of the amount to be amortized shall be based on the value and condition of the land and improvements for the nonconforming use less their value and condition for a conforming use, and such other reasonable cost as the termination may cause. The rate of amortization shall be in accordance with reasonable economic practice.

A. 

There shall be a Zoning Board of Appeals and a Planning Board. Said Zoning Board of Appeals shall consist of five members, and said Planning Board shall consist of seven members. The method of appointment, terms of office and tenure of all members shall be as prescribed by law, including Chapter 45, Planning Board and Zoning Board of Appeals, of the Code of the Town of Montgomery, as may be amended from time to time.

B. 

The Zoning Board of Appeals shall have all the powers and duties prescribed by law and by this chapter and shall decide all applications for variance or interpretation of this chapter as set forth at § 235-15.3 of this chapter. The Planning Board shall have all of the powers and duties prescribed by law and by this chapter and by Chapter 200, Subdivision of Land, of the Town of Montgomery and shall review and decide all applications for special exception use permits, subdivision applications and certain site plans as elsewhere described in this chapter.

C. 

The Zoning Board of Appeals and the Planning Board each shall appoint a secretary and shall prescribe rules for the conduct of their affairs.

D. 

All meetings of the Zoning Board of Appeals and of the Planning Board shall be in accord with the provisions of the NYS Public Officers Law, Article 7, as amended. A quorum shall consist of three members of the Zoning Board of Appeals and four members of the Planning Board.

E. 

Every decision by either Board shall be by resolution and shall contain a full record of the findings of either Board in the particular case.

F. 

Filing requirements. Town Law § 267-a, at Subdivisions (2) and (9), are hereby superseded to the extent that the requirement that every decision of the Zoning Board of Appeals shall be filed in the office of the Town Clerk within five business days of the date such decision is rendered shall be deemed to be the date such written decision is approved by resolution of the Zoning Board of Appeals. See § 235-15.54D(4) and (5) for the filing requirements for actions of the Planning Board.

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

G. 

Unless otherwise superseded, all use and area variances shall be defined and shall meet the standards as set forth in New York State Town Law §§ 267-a and 267-b, as amended.

(1) 

Use variances. No such use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the Zoning Board of Appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:

(a) 

The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;

(b) 

The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;

(c) 

The requested use variance, if granted, will not alter the essential character of the neighborhood; and

(d) 

The alleged hardship has not been self-created.

(2) 

Area variances. In making its determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination, the Board shall also consider:

(a) 

Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;

(b) 

Whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance;

(c) 

Whether the requested area variance is substantial;

(d) 

Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

(e) 

Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.

H. 

Guiding principles.

(1) 

Every decision by the Zoning Board of Appeals granting a variance shall clearly set forth the nature and extent of such variance.

(2) 

Every variance granted by the Zoning Board of Appeals may be made subject to conditions and safeguards as the Zoning Board of Appeals shall deem to be applicable to the particular case. Violations of such conditions or safeguards which are a part of the Zoning Board of Appeals' decision shall be deemed a violation of this chapter punishable under the provisions of § 235-16.

(3) 

Any variance granted by the Zoning Board of Appeals pursuant to the provisions of this § 235-15 shall be construed to be a nonconforming use.

A. 

Applications for any action by the Zoning Board of Appeals shall be submitted in the form required by the Zoning Board of Appeals and filed in the municipal office.

B. 

The Zoning Board of Appeals shall fix a time and place for a public hearing thereon, and shall provide for the giving of notice at least five days prior to the date thereof, as follows:

(1) 

By publishing a notice in the official newspaper.

(2) 

By requiring the applicant to give notice of the substance of every appeal for a variance together with notice of the hearing thereof by causing notices to be mailed at least five days before the date of said hearing to the owners of all property abutting that held by the applicant in the immediate area (whether or not involved in such appeal or application) and all other owners within 300 feet, or such additional distance as the Zoning Board of Appeals may deem advisable, from the exterior boundaries of the land involved in such appeal, as the names of said owners appear on the last completed assessment roll. Such notice shall be by certified mail, return receipt requested, and the applicant shall furnish proof of compliance with notification procedure; provided, however, that the Zoning Board of Appeals may accept substantial compliance with these provisions in cases of difficulty in serving such owners.

(3) 

If the land involved in an application is within 500 feet of the boundary of any other municipality, notice of the public hearing shall also be mailed to the municipal clerk of such other municipality.

(4) 

If the land involved in any appeal is within 500 feet of the boundary of any other municipality, or any existing or proposed county or state park or other recreation area, or the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway, or the existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines, or the existing or proposed boundary of any county- or state-owned land on which a public building or institution is situated, then notice of the public hearing and description of the applicant's proposal shall be mailed to the Orange County Planning Department.

C. 

No action shall be taken on applications referred to the Orange County Planning Department until the Department's recommendation has been received or 30 days have elapsed after the Department received the full statement on the applicant's proposal or unless or until said Planning Department has indicated that the type of application is one that it will not review, whichever event first happens.

D. 

A record shall be established of all variances granted pursuant to action of the Zoning Board of Appeals under this chapter. Each case shall be identified by a sequential numbering system and alphabetically by the applicant's name. Said files shall be available for public inspection.

E. 

The Zoning Board of Appeals shall keep minutes of its proceedings showing the vote of each member upon every question or, if absent or failing to vote, indicating such fact. The Zoning Board of Appeals shall keep records of its examinations and official actions, all of which shall be filed in the Clerk's office and shall be a public record.

F. 

Building permits authorized by Zoning Board of Appeals actions on variance cases shall be obtained within six months and shall automatically expire if construction under the permit is not started within 90 days of issuance and completed within one year. Extensions of these periods may be granted by the Zoning Board of Appeals where good cause is shown.

G. 

The fee for applications to the Zoning Board of Appeals or Planning Board shall be in accordance with the Town Fee Schedule.

Editor's Note: A copy of the current Fee Schedule is included at the end of this chapter (see Attachment 7).

A. 

The Board of Appeals shall, upon appeal, hear and decide:

(1) 

Any matter where the applicant alleges that the Building Inspector was in error in refusing to issue a building permit or certificate of occupancy, as a result of misinterpreting the meaning, intent or application of any section or part of this chapter.

(2) 

Any matter where the appellant alleges that the Building Inspector was in error in his determination as to the exact location of a district boundary line on the Zoning Map that forms part of this chapter.

(3) 

Any matter which the Building Inspector appeals on grounds of doubt as to the meaning or intent of any provision of this chapter or as to the location of a district boundary line of the Zoning Map.

B. 

In addition to the above powers, the Zoning Board of Appeals shall have all of the powers set forth in §§ 267, 267-a, 267-b and 267-c of the New York State Town Law, as amended.

The Planning Board shall have original jurisdiction and power to grant a permit for a special exception use on a particular site wherever it is expressly provided in this chapter that the special exception may be granted upon application to the Planning Board without a finding of practical difficulties or unnecessary hardship but subject to the general provisions of this chapter and more specifically to the guiding principles, general standards, and the special conditions and safeguards contained in this section.

A. 

Guiding principles.

(1) 

Such use shall be one which is specifically authorized as a special exception use in the district within which the subject site is located.

(2) 

Every decision by the Planning Board granting a permit for a special exception use shall clearly set forth the nature and extent of such authorized use and any special conditions or safeguards to which it shall be subject as a result of the Board's findings. Violations of any such limitations or special conditions and safeguards shall be deemed a violation of this chapter punishable under the provisions of § 235-16.

(3) 

A special exception use for which a permit is granted by the Planning Board pursuant to the provisions of this section shall be construed to be a conforming use.

B. 

General standards. For every such special exception use the Planning Board shall determine the following:

(1) 

That such use will be in harmony with and promote the general purposes and intent of this chapter as stated in § 235-2.

(2) 

That the plot area is sufficient, appropriate and adequate for the use and the reasonably anticipated operation and expansion thereof.

(3) 

That the proposed use will not prevent the orderly and reasonable use of adjacent properties in adjacent use districts.

(4) 

That the site is particularly suitable for the location of such use in the community.

(5) 

That the characteristics of the proposed use are not such that its proposed location would be unsuitably near to a church, school, theater, recreational area or other place of public assembly.

(6) 

That the proposed use, particularly in the case of non-nuisance industry, does conform with the local law definition of the special exception use where such a definition exists, or with the generally accepted definition of such use where it does not exist in the local law.

(7) 

That access facilities are adequate for the estimated traffic from public streets and sidewalks, so as to assure the public safety and to avoid traffic congestion, and further that vehicular entrances and exits shall be clearly visible from the street and not be within 75 feet of the intersection of street lines at a street intersection except under unusual circumstances.

(8) 

That there are off-street parking and truck loading spaces at least in the number required by the provisions of § 235-12, but in any case an adequate number for the anticipated number of occupants, both employees and patrons or visitors, and further that the layout of the spaces and driveways is convenient and conducive to safe operation.

(9) 

That adequate buffer yards and screening are provided where necessary to protect adjacent properties and land uses,

(10) 

That adequate provisions will be made for the collection and disposal of stormwater runoff from the site, and of sanitary sewage, refuse or other waste, whether liquid, solid, gaseous or of other character.

(11) 

That the proposed use recognizes and provides for the further specific conditions and safeguards required for particular uses in § 235-15.4C, if any.

C. 

Special conditions and safeguards for certain special exception uses by the Planning Board. No authorization for a building permit shall be granted by the Planning Board for any use listed in this section, unless the Board shall specifically find that, in addition to meeting all the general standards set forth in Subsection B, the proposed special exception use also meets the special conditions and safeguards required in this section.

(1) 

Abattoir. All activities related to the abattoir, including the detention pens, shall be conducted within a building.

(2) 

(Reserved)

(3) 

Airport.

(a) 

The proposed airport shall meet Federal Aviation Administration standards.

(b) 

The proposed runways and resultant airport hazard zones shall not create unreasonable hazards or nuisances to existing or potential land uses on the ground.

(4) 

Animal hospital.

(a) 

Adjacent properties shall be adequately protected from noise, odors and unsightly appearance.

(b) 

All buildings, structures or other accessory use areas, except off-street parking, shall be at least 50 feet from any property line.

(5) 

Arena, assembly hall.

(a) 

No building or structure shall be built within 50 feet of any property line.

(b) 

Lot coverage shall not exceed 20%.

(c) 

The site boundaries shall be at least 200 feet distant along any bounding street from any residence district boundary line.

(d) 

In the B-4 District, the site shall have a minimum area of five acres and minimum frontage of 400 feet along the principal bounding road.

(6) 

Automobile laundry. See “filling station.”

(7) 

Building contractor storage and/or equipment yard.

(a) 

The entire activity shall be contained within an eight-foot-high opaque fence or equivalent landscaped screening.

(b) 

There shall be no outdoor storage of waste materials or other debris resulting from construction projects or from servicing of equipment.

(c) 

The site shall be kept in such a condition as not to attract or harbor pests, rodents or other vermin.

(8) 

Bus passenger shelter.

(a) 

Shelters shall be so located that there is ample room to permit the bus to leave the traveled roadway conveniently for picking up or discharging passengers.

(b) 

The only advertising display on such structure shall be one plaque not to exceed two square feet in area, except school bus shelters.

(9) 

C&D processing. See “recycling handling and recovery facilities” and determine relevant requirements. See also Attachment 5, Bulk Requirements for Composting, Recycling Handling and Recovery Facilities, included at the end of this chapter.

(10) 

Campgrounds.

(a) 

Occupancy by any individual or group of individuals in any form of permitted temporary, movable or portable shelter shall be for a period of not longer than 120 days in any twelve-month period.

(b) 

Each camping space shall be at least 3,000 square feet in area with a minimum average width of 30 feet. There shall be an average of no more than 10 campsites per acre for any campground.

(c) 

Parking spaces for automobiles shall be 30 feet long and 12 feet wide with an eight-foot-wide strip of washed, crushed stone or shale, or two-inch blacktop slabs over gravel or a stabilized surface. Parking spaces for automobiles with trailers shall be 50 feet long and 14 feet wide with a ten-foot-wide strip of washed, crushed stone or shale, or two-inch blacktop slabs over gravel or a stabilized surface.

(d) 

No camping space shall be within 50 feet of any property line or within 100 feet of any watercourse which is part of any public water supply system.

(e) 

Each camping space shall be provided with thirty-amp, two-hundred-forty-volt electrical service.

(f) 

Sanitation facilities shall be furnished in accordance with the following specifications:

[1] 

One toilet for each sex for each 10 sites shall be provided within 300 feet of each camping space. A minimum of two toilets for each sex shall be provided.

[2] 

Urinals shall be provided. Up to 1/2 the male toilets may be urinals.

[3] 

Lavatories shall be provided at a ratio of one for each 15 units for each sex.

[4] 

Showers shall be provided and must be served with hot and cold or tempered water between 90° F. and 110° F. and be available at a ratio of two showers for each 50 units for each sex.

[5] 

Slop sinks with flushing rims or basins and laundry tubs with water supply shall be provided to serve each 50 units.

[6] 

Each toilet and shower for which provision is made in the subsections above shall be in a private compartment or stall.

[7] 

The toilet and other sanitation facilities for males and females shall be either in separate buildings or shall be separated, if in the same building, by a soundproof wall. The sanitation facilities for males and females shall be distinctly marked to denote the sex for which they are intended.

[8] 

Where individual water hookups and sewage disposal facilities are provided, the ratio shall be one toilet and lavatory for each sex for every 40 units within 500 feet of each unit.

[9] 

At least one travel trailer sanitary dumping station shall be provided.

[10] 

The owner of a campground shall provide for the collection of refuse and garbage daily and shall also conveniently locate fly-tight refuse containers on each campsite. Refuse containers shall be cleaned, covered and maintained as often as may be necessary to promote a wholesome and nonodorous condition to prevent the breeding of insects therein.

(g) 

Service buildings housing sanitation facilities shall be constructed and maintained in accordance with the following specifications:

[1] 

They shall be permanent structures complying with all applicable ordinances and statutes regulating buildings, electrical installations and plumbing and sanitation systems.

[2] 

The service building shall be well lighted at all times of the day and night, shall be well ventilated with screened openings, shall be constructed of such moistureproof materials, which may be painted woodwork, as shall permit repeated cleaning and washing, and shall be maintained at a temperature of at least 68° F. during the period from October 1 to May 1. The floors of the service buildings shall be of concrete or similar materials, elevated not less than four inches above grade, and shall slope to a floor drain located in each room.

[3] 

All service buildings and the ground of the site shall be maintained in a clean, sightly condition and kept free of any condition that will menace the health of any occupant or the public or constitute a nuisance.

(h) 

All campgrounds in RA-.5, RA-2, I-1, I-2 and I-3 Districts shall be a minimum of 10 acres in area. All campgrounds in B-1 and B-4 Districts related to a retail commercial facility and on the same lot shall be a minimum of five acres in area.

(i) 

Each campground shall provide a playfield at least one acre in area. At least one acre of playfield for every 25 campsites shall be provided.

(j) 

Campground stores are permitted in B-1 and B-4 Districts according to applicable district regulations for retail stores and may be accessible to the general public.

(k) 

Campground stores in all residential and industrial districts are permitted to be located within the campground site and may be part of the office.

(l) 

Ancillary facilities such as stores, offices, swimming pools, service buildings, etc. shall be submitted to the Planning Board for site plan approval along with the overall development.

(m) 

All water and sewer facility plans shall be submitted to the Orange County Department of Health for approval prior to final site plan approval and the issuance of building permits.

(11) 

Church or similar place of worship, parish house, seminary, convent.

(a) 

All buildings and structures shall be at least 50 feet from any property line.

(b) 

Lot coverage shall not exceed 20%.

(12) 

Commercial public recreation uses not otherwise prohibited.

(a) 

Such uses shall not include any use listed as a prohibited use in § 235-9.1H.

(b) 

The lot shall have an area of five acres or more and a minimum frontage of 400 feet along the principal bounding roadway.

(c) 

All buildings or structures shall be at least 50 feet from any property line.

(d) 

Lot coverage shall not exceed 20%.

(e) 

Outdoor public address systems shall be prohibited.

(13) 

Composting facility. See “recycling handling and recovery facilities” and determine relevant requirements. See also Attachment 5, Bulk Requirements for Composting, Recycling Handling and Recovery Facilities, included at the end of this chapter.

(14) 

Conversion of an existing residential structure into multifamily dwellings. Conversions shall be approved by the Planning Board, provided all of the following criteria are met by the applicant and structure in question:

(a) 

Lot area. There will be at least 20,000 square feet of lot area per dwelling unit in the RA-2 District, and at least 30,000 square feet of lot area per dwelling unit in the RA-.5 District.

(b) 

In order to be eligible for conversion, the original structure shall have been constructed at least 30 years prior to the date of application for a special exception use permit. Evidence of age satisfactory to the Planning Board shall be submitted along with the application. In addition, the structure must have a minimum livable area, exclusive of garages, porches or basements, of 1,400 square feet.

(c) 

Each proposed dwelling unit within the structure must have at least 450 square feet of living area, exclusive of interior common hallways, and direct egress to the exterior of the structure must be provided.

(d) 

Off-street parking shall be provided on the following basis:

[1] 

One-bedroom units: 1.5 parking spaces.

[2] 

Units with two or more bedrooms: two parking spaces.

(e) 

Signs, other than those normally permitted elsewhere in this chapter for the district involved for residential uses in residential zones, shall not be permitted.

(f) 

No office or retail or service commercial uses shall be permitted within the structure.

(g) 

The front yard and side yard facing a street shall be properly landscaped prior to the issuance of a certificate of occupancy or a landscaping bond may be required to be posted with the Town Board up to the maximum of $1,000 at the discretion of the Planning Board upon the advice of its landscape architect.

(h) 

The structure's final appearance and potential density shall be in keeping with the character of the immediate neighborhood within 300 feet of the side and front lot lines. Only one entrance shall be permitted for each facade of the structure per floor or story.

(i) 

Each dwelling unit shall contain its own separate and private bathroom and kitchen facilities wholly within each dwelling unit.

(j) 

Each structure proposed for conversion shall have one dwelling unit occupied by the property owner, and said property owner shall be a resident of the premises for at least four consecutive years preceding the application for conversion. Should the owner have a place of permanent residence other than the premises for a period of more than six consecutive months, the special exception permit shall become null and void and the premises shall revert to their original permitted use which existed immediately prior to the issuance of the permit.

(k) 

The location of the existing well and septic system shall be shown on the site plan. Expansion of the septic system and/or a new well may be required if there is evidence that their capacity is not adequate for the units proposed, based upon current engineering and health standards of the Town, county or state.

(l) 

A new owner shall apply for a new permit for an existing accessory apartment within two months of taking of title to the property. Such application shall be made directly to the Building Inspector. The Building Inspector shall issue said permit if, after inspection, the premises are in the condition approved in the original application, and the application was made within two months of the initial ownership. If these conditions have not been met the application shall be rejected and the applicant shall reapply to the Planning Board.

(m) 

The permit shall terminate upon the sale of the property by the owner or by the death of the owner or survivor, or by the owner no longer occupying the premises as his or her primary residence.

(n) 

However, the provisions of this section shall not apply to an existing lawful one-family dwelling to be converted to a two-family dwelling if the existing lot meets all requirements as to lot area and setbacks for a two-family dwelling in the district in which the reconstruction or conversion is proposed and, further, that the Engineer for the Town certifies that the sanitary disposal system will meet acceptable standards for the two-family dwelling.

(15) 

Day camp.

(a) 

The lot shall have an area of five acres or more.

(b) 

There shall be no more than one camper for every 2,000 square feet of site area.

(c) 

All buildings, structures and areas of organized activity such as baseball diamonds, basketball courts, riding areas, swimming pools, etc. shall be at least 100 feet from any property line.

(d) 

Off-street parking areas shall be at least 50 feet from any property line.

(e) 

Only one permanent family dwelling unit shall be located on the premises, and said dwelling unit shall comply with the provisions of this chapter for the district in which the lot is located.

(f) 

Public address systems shall be prohibited.

(g) 

Only one sign not larger than 12 square feet in area shall be permitted.

(h) 

Landscaping and fencing shall be provided as required by the Planning Board.

(16) 

Eating establishment: drive-in, open front or curb service.

(a) 

Vehicular entrances and exits shall be controlled by curbing.

(b) 

There shall be adequate off-street parking and loading space to serve the proposed use.

(c) 

There shall be adequate provision for disposal of trash and refuse left on the premises.

(d) 

There shall be either a suitable fence or landscape planting screen along side and rear lot lines.

(17) 

Filling station.

(a) 

The lot area shall be not less than 20,000 square feet, and the lot shall have a minimum frontage along the principal roadway of at least 150 feet.

(b) 

No church, school, library, playground or similar place of public assembly shall be within 500 feet of the site.

(c) 

All pumps and lubricating and other devices shall be located at least 25 feet from any building, structure, or street line.

(d) 

Entrance or exit driveways shall be located at least five feet from any side or rear property lines. Such driveways shall be so laid out as to avoid the necessity of any vehicle backing across any right-of-way.

(e) 

The area devoted to the outdoor storage of motor vehicles or parts thereof, for purposes of dismantling, will be screened from view of persons on adjacent streets by enclosing such areas with an opaque fence eight feet high or locating them inside a building. Not more than five motor vehicles shall be stored outdoors overnight.

(f) 

Premises shall not be used for the sale, rent or display of automobiles, trailers, mobile homes, boats or other vehicles.

(g) 

Diesel fuel sales shall not exceed 15% of total fuel sales for any thirty-day period.

(18) 

Filling station, liquefied petroleum gas (LPG).

(a) 

The lot area shall be not less than 20,000 square feet, and the lot shall have a minimum frontage along the principal roadway of at least 150 feet.

(b) 

Gallons shall be measured in terms of water capacity.

(c) 

No church, school, library, playground or similar place of public assembly shall be located within 500 feet of the site.

(d) 

All storage tanks under 2,000 gallons' capacity shall be located at least 25 feet from any building, structure or lot line; 75 feet from any residence; and shall be surrounded at all times by a chain link fence at least five feet in height with a self-latching gate which shall be locked when the tank is not being actively used or serviced. Alternative fencing may be approved by the Planning Board, provided it is the equivalent of a chain-link fence or greater, in terms of security and penetrability.

(e) 

Entrance or exit driveways shall be located at least five feet from any side or rear property lines. Such driveways shall be so laid out as to avoid the necessity of any vehicle backing across any right-of-way.

(f) 

The area devoted to the outdoor storage of motor vehicles, or parts thereof, for purposes of dismantling will be screened from view of persons on adjacent streets by enclosing such areas with an opaque fence eight feet high or locating them inside a building. No more than five motor vehicles shall be stored outdoors overnight.

(g) 

Premises shall not be used for the sale, rent or display of automobiles, trailers, mobile homes, boats or other vehicles.

(h) 

Storage tanks in excess of 2,000 gallons shall be located at least 50 feet from a lot line and 100 feet from a residence.

(i) 

Storage tanks shall be limited to 30,000 gallons' capacity with a total storage capacity of 70,000 gallons on any one site.

(j) 

LPG shall otherwise be stored and handled according to the latest edition of the National Fire Protection Association Manual 58, which shall be kept on file in the office of the Town Building Inspector.

(k) 

Dispensing devices shall be located at least 20 feet from a building or property line and 10 feet from a LPG container or tank.

(l) 

Containers awaiting refilling shall be stored indoors, or if stored outdoors they shall be located at least 10 feet from a lot line and enclosed behind a solid fence.

(19) 

Fuel storage (in the B-4, ID, I-3 and I-4 Districts only).

(a) 

Fuel storage tanks shall be set back from all lot lines at least 75 feet.

(b) 

Fuel storage facilities shall be so screened that adjacent properties shall be adequately protected from noise, odors and unsightly appearance.

(c) 

The site shall provide adequate off-street parking for all employees and loading spaces for all trucks which may be involved with the facility.

(d) 

The height of a fuel storage tank may be increased to 50 feet above the average ground elevation at its base where it is determined that the terrain between the tank and the lot lines is more than 15 feet above the average ground elevation at the tank's base for at least three-quarters of the tank's surrounding.

(e) 

A dike shall be erected around the tank or tanks to contain the fuel stored therein.

(20) 

Full-service truckstops. Full-service truckstops must include a restaurant, rest rooms, fuel service and motel accommodations with a minimum of 20 bedrooms. The use also may include auto and truck repair facilities and/or a convenience store and/or truck wash. Uses shall be permitted under the guidelines established herein and based upon the following conditions:

(a) 

Minimum lot size shall be 30 acres.

(b) 

One tractor-trailer truck parking space shall be provided for every 100 square feet of retail floor space and for every two seats in the restaurant.

(c) 

One automobile parking space shall be provided for every 150 square feet of retail floor space and for every two seats in the restaurant.

(d) 

Each gasoline or diesel fuel pump island lane used by tractor-trailer trucks shall provide for standing space for six trucks.

(e) 

Adequate room shall be provided on-site for maneuvering of all vehicles. A traffic report prepared by a certified and licensed traffic engineer which analyzes all existing and potential off- and on-site traffic conditions shall be a part of the application for a special exception use permit. Truck deceleration lanes shall be provided at least 100 feet in length plus tapers. The actual lengths shall be determined after review of the traffic engineer's reports.

(f) 

One tractor-trailer truck parking space shall be required for each motel or transient residential accommodation.

(g) 

Landscaping shall be provided along all lot lines unless waived by the Planning Board where the existing landscaping is found to be adequate.

(h) 

Adequate lighting and signage shall be provided based upon current requirements, and objectionable or hazardous lighting glare shall be shielded from adjacent properties and streets.

(i) 

Such establishments shall be located no closer to any state highway than 300 feet. No direct access to any state highway shall be permitted unless such access is via a separate ramp to and from an interstate highway.

(j) 

Additional uses which are allowed accessory to a full-service truck stop are auto and truck repair facilities, a truck wash and convenience store.

(k) 

Drainage plans shall include oil/water separation systems acceptable to the Town Engineer and Planning Board.

(21) 

Golf course, country club on site of not less than 50 acres. See “commercial public recreation uses,” etc. for additional conditions.

(22) 

Home veterinarian office, breeding kennel. See “animal hospital.”

(23) 

Hospital, sanitarium, nursing home, rest home:

(a) 

The lot area shall be not less than five acres, and the lot shall have a minimum frontage of 400 feet along the principal bounding roadway.

(b) 

All buildings and structures shall be at least 50 feet from any property line.

(c) 

Lot coverage shall not exceed 20%.

(24) 

Hotel. There shall be least 1,000 square feet of lot area for each guest room.

(25) 

Integrated residential, agricultural and light industrial community.

(a) 

Such communities shall include the following allowable uses, which may be approved as one special exception use permit on one or more lots at the discretion of the Planning Board:

[1] 

Living and sleeping accommodations for not more than 250 residents in not more than 40 dwelling units distributed over not more than 14 structures pursuant to a cluster plan authorized elsewhere in this chapter.

[2] 

Private cooking and dining facilities to service only the residents, guests and invitees of the owner of the property.

[3] 

Educational facilities.

[4] 

Child care for the residents of the property.

[5] 

Administration services.

[6] 

Health-care services for the residents of the property.

[7] 

Recreation facilities.

[8] 

Maintenance and farm buildings.

[9] 

Cemetery.

[10] 

House of worship.

[11] 

Light industrial facility of not more than 85,000 square feet.

[12] 

Heating facility.

[13] 

Water supply, storage and distribution facilities.

[14] 

Sewage treatment and collection facilities to service only the lands within the RA-CE District.

(b) 

Special conditions for this use are:

[1] 

The execution of a conservation easement to assure perpetual protection of open space and Town access to an undefined potential water storage site. The conservation easement shall have three parts:

[a] 

The core area of 73 +/- acres on which are located the new residential structures, the services attendant to the residential community, the main place of worship and ancillary uses, all as to be shown on the approved site plan.

[b] 

The ten-acre portion of the site which would be a tax-paying parcel limited to light industrial use of not more than 85,000 square feet plus a central heating plant subject to Planning Board approval.

[c] 

The remaining portion of 180 +/- acres of the site will be limited to the existing residential structures, agriculture, open space, access to a water storage area and other open space uses, as defined in the conservation easement.

[2] 

Access to the core area of 73 +/- acres shall be limited to Coleman Road. There will be no regular vehicular connection to the adjoining ten-acre light industrial site. Emergency connection will be maintained.

[3] 

The core area shall be serviced by central water and sewer systems to be built, operated and maintained by the landowner. The site may contain a water storage tank with a capacity of appropriate gallonage as is required for the community and a sewage treatment plant with a treatment capacity of appropriate gallonage as is required for the community, which STP shall service only the lands which are within the RA-CE Zoning District.

[4] 

The ten-acre light industrial portion of the site is limited to a maximum build-out of 85,000 square feet for the light industrial facility plus the heating plant and ancillary structures as approved by the Planning Board.

[5] 

The community will be heated by a biomass heating plant with an initial capability of producing 950,000 btu/hour peak output. Additional boilers will be added as needed. State permits will be secured where required prior to being put on-line. A backup system will be in place prior to issuance of the initial certificate of occupancy. Fuel to be used in the biomass system shall be limited to wood chips, which will be stored in an enclosed structure.

[6] 

All development shall be consistent with the findings of the completed SEQRA process adopted April 29, 2002, unless amended by subsequent action pursuant to law.

[7] 

Construction shall be limited to the hours of 7:00 a.m. to 7:00 p.m. daily except Sunday, when no construction is permitted.

(26) 

Licensed mobile home court. The lot area shall be not less than five acres, and a proposed site development plan for the entire site, prepared by a licensed professional engineer, shall be submitted for approval. The initial development shall cover at least two acres, and subsequent additions shall be not less than one acre. All mobile home courts in existence at the time of the enactment of this chapter are required to comply with all requirements of this subsection within two years of the date of enactment. The site development plan shall reflect the following minimum standards and features:

(a) 

A street system with paved roadways, a minimum of 20 feet wide, with curbs or gutters, giving access to all mobile home spaces; and at least two access drives to and from the public street.

(b) 

Established mobile home spaces of not less than 2,000 square feet and a minimum width of not less than 30 feet; provided, however, that the average area of all spaces shall not be less than 3,000 square feet, and the average width of all spaces shall not be less than 40 feet. There shall be at least 12,000 square feet of area provided for each trailer. Area requirements of this Subsection C(26)(b) shall apply to all new mobile home courts and expansion of existing mobile home courts.

(c) 

Each mobile home space shall have:

[1] 

A twelve-foot-wide driveway from the street;

[2] 

A stabilized gravel mobile home stand;

[3] 

A four-inch concrete patio, 10 feet by 18 feet in area;

[4] 

An inconspicuous fuel oil storage shelter; and

[5] 

Suitable weatherproofed utility connections.

(d) 

All mobile homes and accessory structures shall be at least 30 feet apart.

(e) 

Mobile homes shall be set back at least:

[1] 

Fifty feet from the right-of-way of any public street or highway;

[2] 

Twenty-five feet from mobile home court streets; and

[3] 

Thirty feet from all other property lines.

(f) 

On-site stormwater drainage system, including provisions for well-drained mobile home spaces, interior private streets and other public areas, as well as consideration for natural watercourses.

(g) 

Sewage disposal and water supply systems approved by the New York State Department of Health.

(h) 

A fire protection system in accordance with standards of the National Fire Protection Association recommendations, and as required and approved by local fire district officials.

(i) 

A complete electrical system in conformance with municipal electrical code provisions, including outdoor lighting along all interior streets, entrances and exits and in public open spaces, with at least one sixty-watt bulb for each 50 feet of street length and an equivalent level of lighting over public open spaces.

(j) 

Garbage and trash collection points so located that no mobile home is more than 150 feet from such a point, equipped with an adequate number of metal garbage cans with tight-fitting covers, and appropriately screened from view.

(k) 

Centrally located public telephone, separate emergency sanitary facilities for men and for women and emergency public water supply.

(l) 

The location of other desired community facilities.

(m) 

An equipped recreation facility with an area equivalent to the proportion of one acre per 100 mobile home spaces in the court, but not less than 1/2 acre in any case.

(n) 

A walkway system of paved or stabilized gravel all-weather paths along interior streets and leading to public open spaces.

(o) 

All accessory structures in a mobile home court shall comply with the building code, this chapter, and such other codes, ordinances and regulations as shall apply.

(27) 

Membership club, nonprofit. See “church,” etc.

(28) 

Motel.

(a) 

There shall be at least 2,500 square feet of lot area for each guest room.

(b) 

Accessory uses to a motel on the same lot may include a related office, restaurant facilities, conference rooms, recreation facilities for guests and off-street parking.

(c) 

A motel guest room may contain a range with no more than two burners and a refrigerator with a capacity not to exceed three cubic feet.

(29) 

Nursery school. See “day camp.”

(30) 

Philanthropic, fraternal or social organization office or meeting room. See “church,” etc.

(31) 

Planned adult community (PAC). “Planned adult community (PAC)” is defined as a mixture of housing types, as approved by the Planning Board, limited by age whereby at least one resident of a dwelling shall be 55 years of age or older and no one under age 19 shall be a resident of a dwelling unit. An applicant shall prepare and provide the required bylaws, deed restrictions and other similar documents, including, without limitation, the offering plan setting forth compliance with the conditions herein contained and with the conditions of any Planning Board approvals of a PAC, to the satisfaction of the Town Attorney and other agencies with jurisdiction prior to final approval. No authorization for any building permits shall be granted by the Town unless the Planning Board shall have approved the special exception use (SEU), site plan and/or subdivision (if any) applications upon a finding that the total project is in keeping with the intent of this provision to provide flexible planning for senior citizen residential development and to promote the master plan while meeting the following special conditions:

(a) 

A planned adult community (PAC) only may be approved by the Planning Board of the Town of Montgomery for the entirety of those certain two tax parcels presently known as Town of Montgomery Tax Map Section 29, Block 1, Lots 10 and 32.1, together with tax parcel 29-1-22.222, if said parcel is acquired to be a part of the PAC, which Tax Map parcels consist of 191 contiguous acres more or less, situate on the north side of Goodwill Road in the Town of Montgomery. The Zoning Map of the Town hereby is amended to create new zoning districts for these lands, which district shall be known as the “RA-2/PAC District” for tax lots 10, 22.222 and 32.1.

(b) 

An overall development plan shall be presented showing the use or uses proposed at a scale of one inch equals 200 feet or larger indicating the areas set aside for each use, and the locations of all structures, parking spaces, rights-of-way and roads or drives and the provision for central community water and sewer services or other public services. Subsequent plans at larger scales for various project components shall be required under the subdivision or site plan review process.

(c) 

The gross density in terms of dwelling units per acre over the entire development shall not exceed the number of units permitted as determined by multiplying the net acreage on the site by the density factor of 2.75 dwelling units per acre, exclusive of senior citizen assisted-living units as otherwise defined elsewhere in this chapter.

(d) 

Net acreage is that area of the site remaining after the following areas have been deducted:

[1] 

Water bodies existing at the time of applications.

[2] 

Areas subject to flooding under FEMA mapping or within the FP District as regulated herein.

[3] 

Areas occupied by a public utility easement in such a manner as to prevent their use and development for uses other than open space, agriculture, roads or parking lots.

[4] 

Areas to be used for religious, commercial, educational, cultural institutions or other quasi-public, institutional or medical or residential care facilities. Public schools, future public or private roads, recreation areas or buildings affiliated with the residential development's owners' association shall not be deducted in determining net acreage.

(e) 

The resultant open space or common land shall be used for recreational and community purposes; including natural parkland, community association buildings, active and passive indoor and outdoor recreation areas, open space or field areas, storage buildings and areas for community residents only, and service or garage and storage buildings for the community.

(f) 

The proposed PAC shall comply with all the Zoning Law requirements except for lot area, width, coverage, setback and other dimensional requirements as approved by the Planning Board. As part of the residential cluster, dwellings may be in the form of single-family attached or detached, townhouse or multifamily dwellings in whatever form of ownership is mutually agreed to between the applicant and Planning Board. Central sewer and water services shall be required for all units.

(g) 

Additional uses allowed in the planned adult community as special exception uses:

[1] 

Commercial retail, personal service, food service and office uses up to a maximum of 3% of the gross site area contained in the application prior to any subdivision. These uses are allowed, provided they are located in the central or core area of the site at least 400 feet away from existing roads and primarily intended to serve the residents of the PAC.

[2] 

Senior assisted-care facilities and nursing care facilities. In a planned adult community these uses shall not be required to have direct access to a state or county road. The maximum density for senior assisted-care facilities shall not exceed 25 senior assisted-care units per acre. The maximum number of senior assisted-care units shall not exceed 200 in any one PAC.

[3] 

Recreational facilities as part of the open space and recreational area for a planned adult community, including a community center or clubhouse.

[4] 

Accessory uses allowable in a PAC are limited to the following, which are subject to Planning Board special exception use permit and site plan approval:

Editor's Note: The Tables of Use Regulations noted below are included at the end of this chapter.

[a] 

Table of Use Regulations for Residence and Agricultural Districts, Row F, Items 2 through 4, 6, 7, and 9.

[b] 

Table of Use Regulations for Business and Industrial Districts, Row F, Items 2, 3, 5, 6, and 9 through 15.

[5] 

Limited commercial, directional, development and announcement signs along Goodwill Road shall be restricted and/or controlled by the Planning Board and allowed only in keeping with the intent of this subsection to limit commercial activity along existing Town roads.

[6] 

Residential and commercial uses are allowed to be mixed in a structure or on a portion of the site, but the commercial portion of the mixed-use area shall count toward part of the three-percent maximum allowable area for commercial uses.

(h) 

Golf courses or country clubs in an adult community can be executive or short courses and are not required to be 50 acres in area on one or more lots.

(i) 

Lots in adult communities may have access to private roads. Private roads are allowed in adult communities, provided they are located within fifty-foot-wide rights-of-way, and further provided they are constructed to Town Board specifications in terms of cross-sections. Road widths, curbing, sidewalks and drainage shall be determined by the Town Engineer and Planning Board.

(j) 

The subdivision of lots within a planned adult community shall be reviewed and approved simultaneously with the special exception use and site plan applications. If a subdivision is required, it shall be reviewed in accordance with the current Subdivision Regulations of the Town.

Editor's Note: See Ch. 200, Subdivision of Land.

(k) 

Recreation fees in lieu of parkland shall be chargeable to each residential unit (not including senior assisted-care facilities) at a rate of $1,000 per dwelling unit for the first 250 units, payable at the time of application for the building permit for the particular unit or units. The Building Department shall refuse to issue a building permit unless this recreation fee has been paid. In the event that all of the on-site recreational facilities have been fully constructed and are in operation and available to area senior citizens in a manner similar to the availability of these facilities to community residents at the time of the issuance of the building permit for the 250th dwelling unit, no further recreation fees shall be due and owing. In the event that all of said on-site recreational facilities are not operational and available to the community residents and area senior citizens as above, the recreation fees at the rate of $1,000 per dwelling unit or lot shall be due and payable for all such units in excess of 250 units until such time as all of the on-site recreation facilities are operational and available to such persons. There shall be no refunds of any recreation fees once due, owing and paid, notwithstanding that all of the on-site amenities eventually are operational and made available to the community residents and area senior citizens as above.

(l) 

Application fees shall include the following:

[1] 

Subdivision fees for single- and two-family lots where appropriate; and

[2] 

SEU and site plan fees in accordance with the fee schedule for all other multifamily residential, commercial, recreational, senior or health care or community facilities or other disturbed areas; and

[3] 

SEQRA fees as appropriate in accordance with 6 NYCRR 617.13(a) through (g), inclusive, as same now exists or may be amended.

(m) 

In the context of this Subsection C(31), the words "community" or "community association" refer strictly to the development and residents thereof and not to the greater Montgomery area outside the boundaries of the proposed development.

(n) 

It is the general policy of the Town that all central sewer and water systems be owned and operated by the Town or a Town improvement district. It is required as a condition to final approval of the special exception use, site plan and/or plat that any central sewer and/or central water systems shall become a part of an improvement district that shall be legally formed or extended at the sole discretion of the Town. Such systems necessary to service the subject PAC, together with their appurtenances, shall be offered for dedication to such districts without costs to the districts. The owner shall petition the Town Board in this regard prior to the sale or transfer of any part of the subject property. In the event that additional water and/or sewer capacity is developed by the sponsor over and above the needs of the PAC, a fair and equitable share of the permitting and construction costs of said additional systems shall be paid by any other users of said facilities.

(o) 

In connection with Subsection C(31)(n) above, no development shall occur within a two-hundred-foot radius of a wellhead constructed within the area noted as a "favorable location of a high-yielding bedrock well" as set forth on those certain maps and in those certain reports entitled "ORANGE COUNTY GROUNDWATER STUDY, ORANGE COUNTY WATER AUTHORITY FOR THE TOWN OF MONTGOMERY,” dated May 1998.

(32) 

Public library, museum, community center, fire station, municipal office or other governmental building of similar character. See “church,” etc.

(33) 

Public passenger transportation station or terminal. All loading or unloading locations for public transportation vehicles shall be off-street.

(34) 

Public utility building, plant, structure or storage yard.

(a) 

All buildings, structures or equipment installations, exclusive of transmission lines, shall be at least 50 feet from any property line.

(b) 

All open storage and equipment areas shall be adequately fenced and screened.

(35) 

Public utility structure or right-of-way necessary to serve areas within the Montgomery community, excluding business office, repair or storage of equipment.

(a) 

All buildings, structures or equipment installations, exclusive of transmission lines, shall be at least 50 feet from any property line.

(b) 

Outdoor installations shall be adequately fenced and screened.

(36) 

Quarry: mining, loading, hauling and/or processing of sand, gravel, shale, fill or topsoil.

(a) 

The proposal shall have a particular time limit for completion of either the entire operation or of each stage of the entire operation.

(b) 

The proposal shall include a specific method for rehabilitating the site or portions of the site related to each stage of the operation.

(c) 

The proposal shall indicate how adjacent properties and the public will be protected from the hazards of the operation, both in terms of on-site activity and off-site traffic generated by that activity.

(d) 

Coordination with the NYSDEC permit process shall be required for all mining operations that otherwise require a permit from the NYSDEC. Any applicant in need of a DEC permit must file copies of all applications, plans, correspondence, etc. with the Planning Board within seven days of the filing of the same with the DEC. All notices from the DEC, likewise, shall be filed with the Planning Board by the applicant within seven days of receipt.

(37) 

Recycling handling and recovery facilities.

(a) 

This subsection regulates recycling handling and recovery facilities, including:

[1] 

Composting operations.

[2] 

Recyclable handling and recovery facilities, including post-collection separation facilities.

[3] 

Waste tire storage and processing facilities.

[4] 

Construction and demolition debris processing facilities.

[5] 

Waste transfer stations.

[6] 

Wood-chipping facilities.

(b) 

General requirements.

[1] 

This chapter specifically excludes any of the facilities listed above which may be owned and/or operated by the Town of Montgomery.

[2] 

All other recycling uses are excluded under this subsection and, therefore, are not permitted.

[3] 

All proposed facilities must comply, at a minimum, with all applicable state requirements pursuant to Part 360 as amended from time to time. All specific references in this subsection to 6 NYCRR Part 360, or to "Part 360," shall mean such section and subsections most recently amended.

[4] 

All proposed facilities, regardless of size or throughput unless specified otherwise, must comply with the requirements of this subsection.

[5] 

Proposed facilities must demonstrate compliance with the approved Orange County Solid Waste Management Plan or receive approval from the Orange County Department of Environmental Facilities and Services or successor agencies.

[6] 

All facilities/uses covered under this subsection are considered special exception uses and, therefore, require a special exception use permit and site plan approval by the Planning Board and in accord with this Subsection C and § 235-16.5 of this chapter, as amended, regardless of whether a building permit is required. These facilities may be permitted as a special exception use as listed in the Table of Use Regulations for Business and Industrial Districts.

Editor's Note: The Table of Use Regulations for Business and Industrial Districts is included at the end of this chapter.

[7] 

An applicant may apply for more than one special exception use or facility regulated by this subsection.

[8] 

Subject to the existing requirements of the Zoning Law of the Town of Montgomery, including § 235-9.1A, this subsection is not intended to restrict or prohibit the storage and/or recovery or recycling of farm products in accord with generally accepted farming practices nor is this subsection intended to prevent or prohibit the storage of such materials by individual landowners for their own use or by retail landscape stores and/or garden centers that store not more than the amount of finished product reasonably expected to be sold at retail.

[9] 

For the purposes of this subsection, the Town Board finds that the storage of organic material and the recovery or recycling of same is not an agricultural practice unless such facility is operated in connection with an ongoing agricultural operation for the purpose of storage of annual field crops or the recycling or recovery of animal wastes. An agricultural operation is as that term is defined in the relevant sections of the Agricultural and Markets Law of the State of New York.

(c) 

Submission requirements. The applicant shall provide the following information, as prepared by a New York State licensed professional engineer, to the Planning Board for review at the time of the application:

[1] 

A site plan that indicates property lines, buildings and appurtenances, roads, parking areas, drainage patterns, elevation contours, location of residences, potable wells and surface water bodies, including wetlands, both on the subject site and within 200 feet of the boundaries thereof. All requirements of § 235-16.5, Required site plan procedure and standards, of this chapter must be met.

[2] 

A facility operations plan must be submitted indicating the times of operation, expected quantities of material to be received and processes to be used. This plan must include an outline of throughput duration, operations and maintenance schedules, equipment processes, including distribution of product, as well as the time frame other materials will remain on-site.

[3] 

A description of the source, quantity and quality of material proposed to be processed at the facility.

[4] 

A description of facility operations, including a list of equipment to be used, including trucks, expected travel routes and methods of application.

[5] 

Odor, dust and vector control plan.

[6] 

Written notification that the requirements of Part 360 have been met. If a NYSDEC permit is required, written notification from the NYSDEC must be submitted. All SEQR and permit applications and determinations shall be coordinated at the discretion of the Planning Board and/or otherwise if required by law. In all circumstances, if the provisions of this subsection impose a more stringent standard, such provisions shall control. If a NYSDEC permit is not required, the applicant must, nevertheless, comply with requirements of the Part 360 regulations and all revisions thereof and the requirements of this subsection to the satisfaction of the Town Planning Board.

[7] 

A contingency plan for use in the event of an on-site emergency. The contingency plan must be submitted to and be approved by the Town of Montgomery Planning Board after referral to the appropriate fire company and other emergency service agencies.

[8] 

Financial assurance estimates and proposed form of surety as per Subsection C(37)(f).

[9] 

A proposed facility closure plan.

(d) 

Siting and design requirements.

[1] 

The facility must be located on a suitable base material to ensure stability and accessibility.

[2] 

Approach roads to the facility and access roads within the facility must be constructed for all weather conditions and maintained in passable conditions at all times to allow for access by fire-fighting and emergency response equipment.

[3] 

The site and facilities shall generally be level and well drained and must be free of standing water with the exception of fire suppression or other mitigative facilities.

[4] 

Depth to seasonal high groundwater table must be greater than 24 inches at all points where operations occur.

[5] 

Surface water drainage must be diverted away from the operating and storage areas.

[6] 

The facility must have adequate water supply for operations and dust control.

[7] 

Buffer areas at the facility shall be maintained as vegetative berms to facilitate filtration of pollutants from stormwater runoff, to retard odor migration off-site, and to prevent blowing of material off-site. The facility must meet the setback requirements specified in the Table of Bulk Requirements for Composting, Recycling Handling and Recovery Facilities in this chapter.

Editor's Note: The Table of Bulk Requirements for Composting, Recycling Handling and Recovery Facilities is included at the end of this chapter.

[8] 

All facility operations areas and materials storage areas visible from public streets or adjacent residential uses shall be screened from public view to the extent practicable by a landscaped buffer or other method acceptable to the Town Planning Board.

[9] 

Access to the site shall be controlled to prevent unauthorized dumping during nonbusiness hours. The operator shall establish a procedure and mechanism for proper disposal of orphaned waste at an approved disposal facility.

[10] 

In no case will any facility operation be located on a one-hundred-year floodplain or regulated wetland.

[11] 

The loading and unloading areas must be adequate in size and design to facilitate efficient unloading and loading of vehicles and the unobstructed movement of vehicles.

[12] 

The facility may only be sited as a special exception use as specified pursuant to this subsection.

[13] 

The facility must be designed in accordance with the specifications in the Table of Bulk Requirements for Composting, Recycling Handling and Recovery Facilities in this chapter.

(e) 

Operations. The applicant must submit an operations plan which provides an overview of daily operations and maintenance schedules, equipment, including without limitation construction vehicles and schedules for the transfer and/or sale of recycled goods or finished products. The term “operations” shall also include the storage of any and all materials. The operations plan must demonstrate that the following criteria will be met:

[1] 

General.

[a] 

Dust from operation areas and roadways shall be controlled so as to not migrate off-site.

[b] 

No materials shall be allowed to blow off-site.

[c] 

All odors must be controlled in a manner to prevent a nuisance to off-site properties and as described in the operations plan.

[d] 

The owner/operator must maintain daily operational records for the facility, yearly truck quantities of each type of material entering and leaving the facility, the mechanism used for processing the material and a listing of end-uses of this material. This information must be summarized and submitted to the Town Planning Board in the form of a facility report every six months from the date of approval or at more frequent intervals if, in the judgment of the Planning Board, such more frequent submittals are required.

[e] 

Fire precautions must be made to reduce the risk of ignition and fire at the facility. This will include, at a minimum, limiting smoking, welding, storage of flammable liquids and open fires to areas with less risk.

[f] 

Provisions for vector and insect control must be made so as to limit on- and off-site impacts.

[g] 

Any changes to the facility design or operations as submitted to the Town Planning Board in the original application shall be submitted to the Town Planning Board for review and for approval as a site plan modification.

[h] 

The noise limitations, resulting from the facility operations, at the facility property lines shall be no greater than the following:

[i] 

Fifty-seven decibels (dbA) from 7:00 a.m. to 10:00 p.m.

[ii] 

Forty-seven decibels (dbA) from 10:00 p.m. to 7:00 a.m.

[i] 

All facilities regulated under this subsection shall operate only during the following hours: 7:00 a.m. to 5:00 p.m. Monday through Friday and 8:00 a.m. to 12:00 noon on Saturdays. No operations shall be conducted on Sundays and the following holidays; New Year's Day, Memorial Day, the Fourth of July, Labor Day, Thanksgiving Day, and Christmas Day.

[2] 

Additional operations requirements for composting facilities.

[a] 

At a minimum, all requirements of 6 NYCRR 360-5.5 must be met.

[b] 

In addition, all composting facilities receiving/processing more than 10 cubic yards (CY) per week of organics must comply with this subsection.

[c] 

The facility must utilize a steady supply of balanced feedstock to allow composting operations without significant stockpiling of one type of material.

[d] 

Yard waste or compost product may not be stored on-site for more than 12 months.

[e] 

Compost piles must be turned when reaching excessive ranges of heat (145° F.), when in need of aeration and/or when the pile is becoming anaerobic.

[f] 

Finished compost product stored on-site must be sufficiently mature so as to not produce nuisance conditions on off-site properties, including odor, vector attraction and potential for fire.

[g] 

Material that is not to be managed on-site must be removed within 10 days. This includes solid waste and other materials not approved for processing on-site by the Town.

[h] 

The decomposition process will be properly managed and maintained in an aerobic condition to prevent unnecessary odors. The temperature of compost piles shall be monitored and recorded regularly during the decomposition process. The temperature records must be submitted to the Town Planning Board as part of a biannual or more frequent facility report, the substance and contents of which shall be determined as a condition of the permit.

[i] 

To reduce pathogen and weed seed growth, the piles must have a recorded temperature of at least 55° C. or 140° F. for three consecutive days prior to finished product distribution.

[j] 

A post-permit monitoring fee in accordance with Subsection C(37)(i) shall be paid to the Town to facilitate inspections and record upkeep of composting facilities.

[3] 

Additional operations requirements for recyclable handling and recovery facilities.

[a] 

At a minimum, all requirements of 6 NYCRR Part 360-12 must be met.

[b] 

Trucks transporting recyclables must be removed within one week of being filled to capacity.

[c] 

A post-permit monitoring fee in accordance with Subsection C(37)(i) shall be paid to the Town to facilitate inspections and record upkeep of recyclables handling and recovery facilities.

[d] 

All on-site storage shall occur inside of an approved structure or contained within a covered "roll-off" or other acceptable container.

[4] 

Additional operations requirements for waste tire storage and processing facilities.

[a] 

Waste tire storage and processing facilities must, at a minimum, meet the requirements of 6 NYCRR 360, Subpart 12, and Subsection C(37)(c). If the processing facility requires tires, the requirements of 6 NYCRR 360, Subpart 13, must also be met.

[b] 

Facilities storing 1,000 or more tires at any time during a year or a facility processing 1,000 or more tires per year must comply with this subsection, including the requirements listed below.

[c] 

Trailers transporting tires, either whole or processed, must be removed from the site or placed within the approved structure within one week of being filled to capacity. Each trailer must be registered with the NYSDEC under a valid waste transporters permit pursuant to 6 NYCRR Part 364. Not more than six trailers may be stored at any one time on sites of under three acres. For sites in excess of three acres, two additional trailers may be stored for each additional acre.

[d] 

The owner/operator must have established markets for the timely removal of tires.

[e] 

Unprocessed tires not otherwise stored in trailers per the requirements herein must be stored inside of a structure that is acceptable to the Town Planning Board. Such a structure shall at a minimum consist of a roof, four walls and a foundation to adequately secure the tires from the elements and to prevent vectors from having unrestricted access to the facility.

[f] 

Tires received must be appropriately sorted and stored immediately upon receipt.

[g] 

Waste tire storage areas must be accessible on all sides to fire-fighting and emergency response equipment.

[h] 

A post-permit monitoring fee in accordance with Subsection C(37)(i) shall be paid to the Town to facilitate inspections and record upkeep of waste tire storage and processing facilities.

[5] 

Additional operations requirements for construction and demolition debris processing facilities.

[a] 

At a minimum, all requirements of 6 NYCRR 360, Subpart 16, must be met.

[b] 

A post-permit monitoring fee in accordance with Subsection C(37)(i) shall be paid to the Town to facilitate inspections and record keeping of construction and demolition debris processing facilities.

[c] 

All C&D processing shall be performed wholly within an approved structure.

[6] 

Additional operations requirements for transfer stations.

[a] 

At a minimum, all requirements of 6 NYCRR 360, Subpart 11, must be met.

[b] 

Facilities handling 1,500 tons per year or 6,000 cubic yards per year or more of solid waste must comply with this subsection.

[c] 

Solid waste must be removed within five days of receipt at the facility or whenever transfer containers are full, whichever comes first.

[d] 

Transfer stations that store, collect or process recyclables must also comply with Subsection C(37)(e)[3] of this section.

[e] 

Transfer stations that collect, store or process compostables must comply with Subsection C(37)(e)[2] of this section.

[f] 

Transfer stations may not compost solid waste under this subsection.

[g] 

A post-permit monitoring fee in accordance with Subsection C(37)(i) of this chapter shall be paid to the Town to facilitate inspections and record upkeep of transfer stations.

[h] 

All transfer station operations shall be performed wholly within an approved structure.

[7] 

Additional operations requirements for wood-chipping facilities.

[a] 

At a minimum, all requirements of 6 NYCRR Part 360-5 must be met.

[b] 

In addition, all wood-chipping facilities receiving/processing more than 10 cubic yards (CY) per week of wood chips must comply with this subsection.

[c] 

Wood chips may not be stored on-site for more than 12 months.

[d] 

Wood chip piles must be stored in a manner that will prevent them from decomposing on site.

[e] 

Finished product stored on-site must not produce nuisance conditions on off-site properties, including odor, vector attraction and potential for fire.

[f] 

All finished product must be stored inside of an approved structure or must be covered by impermeable material to protect the material from the elements and to prevent decomposition of the material on-site.

[g] 

A post-permit monitoring fee in accordance with Subsection C(37)(i) of this chapter shall be paid to the Town to facilitate inspections and record upkeep of wood-chipping facilities.

(f) 

Financial assurance.

[1] 

The owner and operator of the proposed facility will be required to provide for financial assurance for facility closure, and such financial assurance shall be in addition to and not in lieu of any other security posted with any other federal, state or county regulatory agency. The forms of financial assurance acceptable to the Town of Montgomery include an irrevocable letter of credit, closure trust fund, or passbook assignment. The mechanism for closure financial assurance must be approved by the Town Board.

[2] 

Surety must be in an amount equal to the disposal cost of maximum facility capacity plus associated transport, cleanup and handling fees to be determined by the Town at the time of application. Disposal costs are based on the current tipping fees at the Orange County transfer station multiplied by the facility maximum capacity. In the event that the Town Board determines that the surety is not adequate to properly close the facility, then, upon written notification to the permit holder, the Town Board may modify the surety requirements accordingly. Upon receipt of such notification the permit holder shall provide evidence of surety to the Town Board within 30 days.

[3] 

Any applicant for any permit regulated by this subsection must submit an estimate of the amount of surety necessary to comply with this subsection, together with the proposed form of surety, at the time of submission of the application.

(g) 

Penalties and remedies. The failure to maintain and operate the site as required by these regulations shall be grounds for enforcement as noted in § 235-16.10 of this chapter and any revisions thereof with the following attendant penalties therein:

[1] 

If the Town Building Inspector or his deputy determines that a facility is operating in contravention to its approved site plan and/or facility operations plan and or special exception use permit, the Inspector shall serve notice to the owner and/or operator of the facility as specified in § 235-16.10 of this chapter.

[2] 

Such notice will require the owner and/or operator to take action immediately after service of the notice. If the violation is not remedied within a reasonable time after said notice, fines may be imposed by the Town in the amount of 2% per week of the estimated facility closure cost as calculated under Subsection C(37)(f).

[3] 

In addition to other remedies provided by law, any appropriate action or proceeding, whether by legal process or otherwise, may be taken to correct or abate such violation of this chapter.

[4] 

Notwithstanding the above, if the Town Building Inspector or his deputy determines that immediate remedial action must be taken to prevent a potentially hazardous condition from causing damage to persons and/or property, the owner and/or operator of the facility or the person on the site with the most authority of the owner and/or operator, if different, shall be served with a written notice advising of the immediate action to be taken and that failure to immediately undertake such action and pursue to completion with all due diligence shall result in a call of all or a portion of the financial security without further notice.

(h) 

Renewals.

[1] 

Permits issued by the Town of Montgomery Planning Board for any and all facilities and operations shall be valid for a period of two years from the date of issuance. The permit holder shall notify the Planning Board Chairman and Town Building Inspector, in writing, at least 120 days prior to the expiration date of the permit to either (a) indicate that the facility is being closed in accordance with the approved closure plan on file with the Town; or (b) make formal application to the Planning Board for renewal of the permit. Formal application to the Town shall include: a certification signed by the applicant and owner attesting that the facility is currently operating in compliance with all applicable requirements of this chapter and the permit for the facility as issued by the Planning Board. The formal application for renewal shall also include such information as deemed necessary by the Planning Board to authorize the Planning Board to meet the requirements specified in Subsection C(37)(h)[2] below.

[2] 

Upon notification from the permit holder that the permit is to be renewed, the Town Planning Board shall review the compliance records of the permitted facility and may require the applicant to update the operations plan, closure plan and/or site plan to address deficiencies in current operations and/or the application of new technologies or changes in applicable regulations, or make other necessary modifications as deemed necessary and appropriate by the Planning Board. The Town Planning Board may also require changes to the form or amount of financial assurances provided for closure of the facility, subject to the approval of the Town Board. The Planning Board is not required to convene a public hearing for permit renewal applications intended to be approved by the Planning Board but, in its discretion, may convene such public hearings.

[3] 

If the Planning Board determines that there exists a basis to deny the completed renewal application, it shall notify the permit holder of its intent in writing. The Planning Board shall issue its formal written notice of intent within 45 days of receipt of a complete renewal application. Once the Planning Board issues this written notice of intent, the Planning Board shall schedule and convene a public hearing for purposes of receiving evidence on the issue of the permit renewal application.

(i) 

Monitoring fees. In connection with any and all permits granted hereunder, the permittee shall pay to the Town of Montgomery within 14 days of issuance of the permit a post-permit monitoring fee representing the estimated expense of the Town of Montgomery in monitoring the subject facility for a one-year period for compliance with the permit or permits herein granted. Prior to issuance of the permit or permits, the Planning Board shall submit to the Town Board a written recommendation as to the proposed first-year monitoring fee. The applicant and the proposed permittee, if different, shall be provided with a copy of such written recommendation. Within 30 days of receipt of such written recommendation, the Town Board, at a public meeting, shall establish said fee after providing the applicant and/or permittee with an opportunity to comment on the fee issue only, either orally or in writing.

[1] 

This fee may be adjusted on an annual basis by the Town Board. If an adjustment is made, the permittee must have prior notice of same and must be presented with an opportunity to be heard.

[2] 

Failure to pay the initial fee and/or failure to pay the annual fee shall be grounds to revoke said permit or permits.

(38) 

Repair garage: See “filling station.”

(39) 

Retail industry.

(a) 

The lot area shall be not less than eight acres with a minimum frontage along a state highway of at least 800 feet and with an average lot depth of 400 feet.

(b) 

Landscaping shall be provided along all side and rear lot lines and front facades of buildings unless waived by the Planning Board where the existing landscaping or natural vegetation is found to be adequate.

(c) 

Adequate lighting and signage shall be provided based upon current requirements, and objectionable or hazardous lighting glare shall be shielded from adjacent properties or streets.

(d) 

The lot shall otherwise be subject to all other dimensional requirements of the Table of Dimensional Regulations for B-4 District uses.

Editor's Note: The Table of Dimensional Regulations for Business and Industrial Districts, including the B-4 District, is included at the end of this chapter.

(40) 

Roadside markets substantially or primarily for the sale of farm products produced on the premises.

(a) 

The roadside market shall be so located as to provide adequate sight distance along the access roadway to permit customers reasonable time to turn into the site.

(b) 

There shall be adequate off-street parking of sufficient depth so that the entrance areas shall not be blocked.

(c) 

Entrance areas shall be so graded and stabilized as to assure convenient access to the site.

(d) 

Outdoor floodlighting shall be prohibited.

(e) 

Only one sign not larger than 12 square feet in area shall be permitted.

(41) 

School, elementary or high, public, denominational or private, having a curriculum the same as ordinarily given in public schools: see “church,” etc.

(42) 

Senior assisted-care facility.

(a) 

Minimum lot size must equal five acres.

(b) 

Primary access must be to either a state or county highway unless the facility is accessory to a planned adult community.

(c) 

Lot coverage must not exceed 20%.

(d) 

Building setbacks must be at least 100 feet from all lot lines unless the adjacent property is part of a common plan or design, in which case that common boundary shall be regulated by the normal setbacks for that particular zone district.

(e) 

This use may not contain more than 120 individual care units on one parcel.

(f) 

The use must comply with the definition of a senior assisted-care facility as found at § 235-3.2 of this chapter.

(g) 

All licenses required by other jurisdictions must be obtained prior to, simultaneous with or as a condition of this special exception use permit.

(h) 

The minimum number of automobile parking spaces shall be one space per employee and 0.5 space per unit, and the minimum truck unloading spaces shall be two.

(i) 

The Planning Board may require landscaping and screening in such amounts and in such locations as it determines is warranted under the particular facts of the application.

(j) 

If the senior assisted-care facility is to provide or receive sewer and/or water services to or from other properties, the Town Board must approve the legal mechanism to accomplish the delivery of such services. The applicant shall petition the Town Board in this regard and shall provide with the petition all of the technical details necessary for the Town Board to reach an informed decision on this question. The Town Board at all times shall retain its discretionary jurisdiction in this regard.

(43) 

Storage for liquefied petroleum gas (LPG).

(a) 

LPG storage tanks in excess of 2,000 gallons' capacity shall be set back from all lot lines at least 50 feet.

(b) 

LPG storage facilities shall be so screened that adjacent properties shall be adequately protected from noise, odors and unsightly appearance.

(c) 

The site shall provide adequate off-street parking for all employees and loading spaces for all trucks which may be involved with the facility.

(d) 

LPG shall otherwise be stored and handled according to the latest edition of the National Fire Protection Association Manual 58, which manual shall be kept on file in the office of the Town Building Inspector.

(e) 

Aboveground storage containers shall not exceed a capacity of 120,000 gallons, nor shall the total volume of gas at any one site exceed 280,000 gallons in an I-3 District or 70,000 gallons in a B-4 or ID District.

(f) 

LPG storage tanks in excess of 70,000 gallons shall be set back 100 feet, and those tanks in excess of 90,000 gallons shall be set back 125 feet from all property lines.

(g) 

Underground containers in excess of 2,000 gallons shall be set back 50 feet from all property lines.

(h) 

No combustible material of any kind, weeds and grass shall be kept within 10 feet of a LPG storage tank or container.

(i) 

LPG storage shall not be located on lands subject to ponding or flooding according to the Town Soils Map or the HUD Flood Insurance Maps.

(j) 

Aboveground LPG storage tanks shall be separated from each other by 20 feet.

(k) 

Gallons shall be measured in terms of water capacity.

(44) 

Temporary sand and gravel removal operations may be located in any district.

(a) 

The minimum site shall be 10 acres.

(b) 

The removal operation shall not be closer than 300 feet to any residential use.

(c) 

Coordination with the NYSDEC permit process shall be required for all mining operations that otherwise require a permit from the NYSDEC. Any applicant in need of a DEC permit must file copies of all applications, plans, correspondence, etc. with the Planning Board within seven days of the filing of the same with the DEC. All notices from the DEC, likewise, shall be filed with the Planning Board by the applicant within seven days of receipt.

(45) 

Theater or motion-picture theater, other than an outdoor drive-in theater. See “arena, assembly hall.”

(46) 

Transfer stations. See “recycling handling and recovery facilities” and determine relevant requirements. See also Attachment 5, Bulk Requirements for Composting, Recycling Handling and Recovery Facilities, included at the end of this chapter.

(47) 

Truck terminals and all nonaccessory warehouses or those accessory warehouses with more than four truck docks.

(a) 

Loading bays may not face street frontage area.

(b) 

Truck storage, parking or running areas shall not be located within 300 feet of a residential district boundary.

(c) 

Truck terminals and warehouses with eight or more loading docks shall be located on lots in excess of five acres in area.

(d) 

Truck parking areas in all districts shall be screened from all adjacent properties by a landscaped area 25 feet in depth along the property line with a living evergreen screen or with tree plantings suitable to the Planning Board. Such screening area may be waived if the parking area abuts another truck storage area or use which, in the opinion of the Planning Board, does not require screening.

(48) 

Veterinarian. See “animal hospital.”

(49) 

Water production, supply and removal.

(a) 

Not more than 90,000 gallons per day may be removed. Daily averaging is prohibited.

(b) 

Retail sales are prohibited.

(c) 

Bottling or other similar facilities are prohibited.

(d) 

Not more than 10 truck-trailers and not more than four truck-tractors permitted at the site at any time. The site plan must depict the acceptable loading and parking areas for such vehicles. No other commercial vehicles shall be permitted to be parked or stored on-site.

(e) 

Truck traffic shall avoid, where possible, travel within residential zones to access the state and county road system.

(f) 

A wellhead protection plan shall be provided as developed by a geohydrologists as part of the approval of the special use permit and site plan.

(g) 

A groundwater study shall be prepared to describe the impacts on adjacent area wells within an area to be determined by the Planning Board based on the anticipated average daily water withdrawal and other relevant factors.

(h) 

Any NYS Department of Environmental Conservation and/or Orange County Department of Health approvals, as may be required, must precede final Planning Board approval.

(i) 

Landscaping, lighting and traffic flow on the site must be approved by the Planning Board in connection with all other plan requirements.

(j) 

The permittee must install and maintain a water meter, at its sole expense, and must maintain accurate production records, which records must be available for inspection by Town personnel upon demand.

(k) 

The application for this permit must include a description of the operation, estimated volume of production in gallons per day, methods of storage and transport and a construction plan for related facilities. All other general special exception use requirements and site plan requirements as set forth elsewhere in this chapter shall apply to this use.

(l) 

All permits granted hereunder must be renewed every three years. The applicant must apply for such renewal not less than 90 days nor more than 120 days prior to the expiration of the existing permit. Upon receipt of such application, the Planning Board may, but need not, convene a public hearing prior to ruling on the permit renewal application.

(m) 

A permit issued hereunder may be revoked for cause after due notice to the permittee and after the permittee has had an opportunity to be heard on any proposed revocation.

D. 

Special exception use and/or site plan public hearing procedure.

(1) 

Application for a permit authorizing a special exception use and/or site plan shall be made directly to the Planning Board in the form required by the Planning Board, accompanied by a filing fee payable to the Town Clerk and a site plan according to § 235-16.5.

(2) 

The Planning Board shall hold a public hearing within 62 days from the time of receipt of the complete application by the Planning Board, and shall provide for the giving of notice at least five days prior to the date thereof in the same manner as provided for in § 235-15.2B(1) through (4) for applications to the Zoning Board of Appeals for variances.

(3) 

No action shall be taken on applications referred to the Orange County Planning Department until the Department's recommendation has been received or 30 days have elapsed after the Department received the full statement on the applicant's proposal or unless or until the Planning Department has indicated that the type of application is one that it will not review, whichever event first happens.

(4) 

Unless otherwise superseded, the provisions of Town Law §§ 274-a and 274-b shall control the special exception use and site plan permitting jurisdiction of the Planning Board. Town Law § 274-a(8) (Chapter 694 of the Laws of 1992, effective July 1, 1993), and § 274-b(6) (Chapter 694 of the Laws of 1992, effective July 1, 1993) are hereby superseded to the extent that the requirement that every decision of the Planning Board shall be filed in the office of the Town Clerk within five business days of the date such decision is rendered shall be deemed to be the date such written decision is approved by resolution of the Planning Board.

(5) 

A record shall be established of all special exception uses granted pursuant to action of the Planning Board under this chapter. Each case shall be identified by a sequential numbering system and alphabetically by applicant's name. Said files shall be available for public inspection.

(6) 

Upon the granting of a permit for a special exception use and/or site plan approval by the Planning Board, the Secretary of the Planning Board shall transmit written approval of such use to the Building Inspector prior to his issuance of a building permit for the special exception use and/or site plan.

(7) 

Building permits authorized by Planning Board actions on special exception and/or site plan applications, including site plan applications approved by the Building Department, shall be obtained within 18 months and shall automatically expire if construction under the permit is not started within 90 days of issuance and completed within one year from the date construction and/or site disturbance begins. Extensions of these periods may be granted by the Planning Board where good cause is shown.

(8) 

The fee for applications to the Planning Board shall be in accordance with the current Town Fee Schedule.

Editor's Note: A copy of the current Fee Schedule is included at the end of this chapter (see Attachment 7).

In applying and interpreting this chapter, its provisions shall be held to be minimum requirements adopted for the promotion of the public health, safety, morals, comfort, convenience, or the general welfare. The following specific regulations shall apply:

A. 

A minimum required lot or yard size for one building or structure shall not be used as any part of a required lot or yard for a second structure.

B. 

The required lot or yard for an existing building or structure shall not be diminished below the minimum requirements of this chapter.

C. 

The parking spaces required for one building or structure or use shall not be included in the computation of required parking spaces for a second building or structure or use.

A. 

Nothing contained in this chapter shall be taken to repeal, abrogate, annul or in any way impair or interfere with the building code or any rules or regulations adopted or issued thereunder, or any provisions of law or ordinances or regulations existing or as may be adopted in the future, when not in conflict with any of the provisions of this chapter, nor is it intended by this chapter to interfere with or abrogate or annul any easements, covenants or other agreements between parties; provided, however, that when this chapter imposes a greater restriction upon the use of buildings, structures, premises, lots or land, or upon the height of buildings or structures, or requires larger lots, yards, courts or other open spaces than imposed or required by such other provisions of law, ordinance or regulation, or by such easements, covenants or agreements, the provisions of this chapter shall control.

B. 

Wherever the provisions of any other law or ordinance or regulations impose a greater restriction than this chapter, the provisions of such other law or ordinance or regulations shall control.

C. 

No provision contained in this chapter shall be construed as justifying the encroachment of any building or structure within any street lines now or hereafter laid down on any subdivision plat filed in the office of the County Clerk or within any state, county, or municipal road.

A. 

It shall be the duty of the Building Inspector to administer and enforce the provisions of this chapter.

B. 

Should said Building Inspector be in doubt as to the meaning or intent of any provision of this chapter, or as to the location of any district boundary line on the Zoning Map, or as to the propriety of issuing a building permit or a certificate of occupancy in a particular case related to the provisions of this chapter, he shall appeal the matter to the Zoning Board of Appeals for interpretation and decision.

C. 

The Building Inspector shall adopt rules of procedure, consistent with this chapter, for the purpose of assuring efficient and uniform administration of its provisions.

D. 

If the Building Inspector should mistakenly issue a building permit which violates the provisions of the chapter, that building permit shall be invalid.

A. 

All procedure with respect to applications for and issuance of building permits shall be in conformity with the provisions of the Building Code Ordinance, Building Code, the NYS Uniform Fire Prevention and Building Code, the NYS Energy Code, the National Electric Code, all as the same now exist or are amended hereafter, and/or other generally accepted standards, at the discretion of the Building Inspector where allowed by law or regulations. All such applications shall be accompanied by such other information as may be necessary to determine and provide for the enforcement of this chapter.

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

B. 

No building permit shall be issued for the erection, construction, reconstruction, structural alteration, restoration, repair, demolition, or moving of any building or structure, or part thereof, unless the plans and intended use indicate that such building or structure is designed and intended to conform in all respects to the provisions of this chapter.

C. 

Where a lot is formed from part of an existing lot, whether already improved or not, the separation must be effected in such a manner that neither of the lots, nor any existing or proposed improvements thereon, contradict the intent or the provisions of this chapter.

D. 

After completion of footings and establishing of the forms on the first course of the foundation walls, or equivalent structure, the owner shall cause a survey to be made by a licensed land surveyor showing the true location of such foundation walls with respect to the lines of the lot, and a copy of such survey shall be filed with the Building Inspector before any further construction is commenced, unless granted temporary waiver by the Building Inspector.

E. 

No building and/or demolition permit shall be issued by the Building Inspector for any property that is subject to the procedures of Chapter 157, Landmarks and Historic Districts, as amended, of the Code of the Town of Montgomery without a prior referral of such building and/or demolition permit application in accord with the requirements of said Chapter 157. All subsequent action by the Building Inspector regarding the decision on such permit application shall be in accord with the requirements of said Chapter 157, including, without limitation, the final determination of the Historic Preservation Commission or the Town Board, as the case may be. (See Attachment 6 of this chapter.

Editor's Note: Attachment 6, Properties Designated as Historic Landmarks Under Local Law No. 1 of 1997, is included at the end of this chapter.
)

F. 

The Building Inspector shall obtain a written order from the Planning Board before issuing a building permit in a case involving a special exception use pursuant to § 235-15.4 or from the Zoning Board of Appeals before issuing a building permit in a case involving a variance from the provisions of this chapter.

A. 

The following site plan provisions are intended to secure compliance with the requirements and standards set forth in this chapter and with accepted professional design practice for such site improvements as drainage, sidewalks, curbs, parking, landscaping, fences, building construction, utilities, accessways, lighting, driveways and grading. Any change of use of a property or portion thereof also shall require compliance with the provisions of this section, regardless of whether or not the change of use involves the construction of a new structure or the alteration of an existing structure.

B. 

Site plan requirements.

(1) 

Building permit applications for any building or structure or use, other than a one-family or two-family dwelling or its accessory buildings or structures, or for any required site plan approval whether or not such application involves the construction of a building, shall include six copies of a site plan drawn to scale containing the following items:

(a) 

Property lines and related street, right-of-way and easement lines as determined by a certified survey signed by a licensed surveyor.

(b) 

Location of existing and/or proposed buildings and structures as prepared by a licensed professional engineer or surveyor.

(c) 

Layout of existing and proposed off-street parking areas showing the details of aisles, driveways and each parking space as prepared by a licensed professional engineer or surveyor.

(d) 

Existing topography of the site and immediately adjacent property as revealed by contours or key elevations as may be required by the Town Planning Board, Town Engineer or Building Inspector and any proposed regrading of the site as prepared by a licensed professional engineer or surveyor.

(e) 

Existing and proposed stormwater facilities as per § 235-10 (Stormwater Management and Erosion and Sediment Control) of this chapter as well as sidewalks, curbs, curb cuts and related structures as prepared by a licensed design professional.

(f) 

Existing and proposed street trees, landscaping and fences as prepared by a landscape architect.

(g) 

Existing and proposed outdoor lighting and sign location as prepared by a licensed professional engineer.

(2) 

All applications shall be submitted in such form and with sufficient copies as prescribed by the Building Inspector and shall be accompanied by such fees as determined from time to time by resolution of the Town Board per the fee schedule existing at the time of application as determined by the Town Board.

Editor's Note: A copy of the current Fee Schedule is included at the end of this chapter (see Attachment 7).

(3) 

In situations where the site plan application and building permit involve the proposed addition to an existing, lawful structure of not more than 25% of the square footage of the existing structure and the proposed addition does not exceed 2,000 square feet in total area, the Building Inspector for good cause may waive the requirements that the site plan contain certifications from a licensed professional engineer and professional landscape architect.

C. 

Additional requirements for improvements shown on the site plan shall be those set forth in this chapter and in other ordinances, rules and regulations, or in construction specifications of the Town of Montgomery.

(1) 

Site plan lighting requirement. The purpose of this subsection is to avoid excessively bright lighting that would cause direct or indirect glare, upcast lighting or sky-glow, to avoid excessive contrast between lighted and unlighted sites creating hazardous driving or walking conditions, to avoid nuisance light spillover or glare affecting nearby residential properties or traffic and to distribute light levels more uniformly across a site. Accordingly, the following requirements shall be met:

(a) 

Site lighting shall be required for all nonresidential parking lots and pedestrian walkways where site hours of operation will extend past the hours of darkness in any season of the year. For parking lots not requiring lighting at this time, underground conduit and cable (properly sized for anticipated lighting load) shall be installed between the building and perimeter of the parking lot. The location, conduit size, number and size of conductors shall be noted on the site plan. For residential plans requiring site plan approval and involving the need for parking lots for more than two cars, site lighting shall also be required unless specifically waived by the Planning Board.

(b) 

Where site lighting is proposed or required, a lighting plan will be submitted. Copies of candlepower tabulations and catalog cut sheets for all exterior lighting fixtures shall be provided with the site lighting plan. In addition lighting isofootcandle lines shall be overlaid on a separate site lighting plan. Low-wattage, shielded, decorative luminaires may be utilized in addition to the main lighting source.

(c) 

All exterior luminaires shall be pulse-start metal halide or super metal halide full cut-off type units with a flat glass lens attached to a pole or building on a fixed arm with the flat glass lens oriented parallel to the ground or such improved equipment and technologies as may be available in the future to further reduce the adverse impacts of unnecessary and excessive light as determined by the Planning Board.

(d) 

For gas station canopy lighting (for illumination of gas pumps) or other canopy lighting, all fixtures shall be fully recessed within the canopy and have a flat glass lens.

(e) 

Parking lot, walkway and other site lighting levels shall not exceed an average illumination level of 0.75 footcandle to five footcandles at the ground. Minimum footcandle levels shall exceed 0.1 footcandle. These lighting levels shall only be exceeded in locations where otherwise specifically required by New York State law. However, in no case shall the illumination source be visible or extend across property lines.

(f) 

Parking lot light fixtures shall not exceed 35 feet in height or the height of the building to which they are accessory, if applicable, whichever is lower. Pedestrian area fixtures shall not exceed 18 feet in height.

(g) 

Where a site is part of a business park, industrial park or residential site plan, the architectural style of site luminaires shall be consistent with the site architecture and at the discretion of the Planning Board. Shoebox-style luminaires are preferred throughout the Town but it is recognized that owners may prefer to choose historic-type luminaires in order to complement the architectural style of the site. However, the Planning Board shall not approve a fixture or luminaire of any kind that does not direct the light downward.

(h) 

The Planning Board shall have the option of approving site lighting that is not required to be installed as a condition of site plan approval but may be installed at the option of the landowner. However, all site lighting, whether required or optional, shall comply with the requirements of this subsection.

(i) 

The Planning Board may require site lighting levels to be reduced on all or part of the site at different times of the day, either after a facility is closed, or for twenty-four-hour-a-day operations, during periods of reduced usage. Such requirement shall be established as part of the review process.

(j) 

Sign lighting. Translucent interior-lighted signs shall be of low brightness design. The light-emitting source details shall be reviewed and approved by the Planning Board.

(k) 

Horizontal plastic interior-lighted bands on canopies, buildings and similar structural applications shall be of low brightness design. The light-emitting source details shall be reviewed and approved by the Planning Board.

(2) 

Site plan access and parking requirement.

(a) 

To avoid a proliferation of curb cuts onto existing arterial/collector roads, to protect traffic safety and operating levels of service on existing and proposed arterial/collector roads and to promote a coordinated mixed-use/commercial layout, the Town Planning Board hereby is authorized to require that an applicant fully investigate and report to the Planning Board the feasibility of coordinated site access and coordinated or common parking areas for lands within the immediate area of the subject parcel.

[1] 

Coordinated site access may be required. An applicant for site plan approval may be required by the Planning Board to provide coordinated site access which may include a new private, commercial access drive to be constructed and maintained by one or more of the area property owners. Any such common access shall be of such width and shall be constructed to specifications all as deemed acceptable to the Planning Board based upon the present and projected future use of said accessway. No such common access shall be located within 300 feet of the intersection of two or more public streets or public highways. The Planning Board shall not require coordinated site access unless the Planning Board is satisfied that there exists an equitable allocation of the construction and future maintenance costs in proportion to the current and future use of the common accessway. A recorded common driveway easement and maintenance agreement may be a condition of final site plan approval.

[2] 

Coordinated or common parking may be required. An applicant for site plan approval may be required by the Planning Board to provide interconnection and cross-easements providing internal connections and/or coordinating parking areas with adjoining parcels. The Planning Board shall not require such interconnection or coordination where it deems this to be impractical due to the type(s) of uses or to site-specific conditions, in the sole discretion of the Planning Board. Where interconnection or coordination is required, the Planning Board may require the installation and long-term maintenance of traffic control devices such as signs, textured pavement, speed humps or any other features or combination of features that it deems necessary in order to manage traffic flows between accessways connecting parking areas.

(b) 

The Planning Board is hereby granted authority under Town Law § 274-a(5) to waive any of the provisions of § 235-12 of this chapter in that area of a site where common lot lines exist in order to provide for a common parking plan. The Planning Board shall not require common parking areas unless the Planning Board is satisfied that there exists an equitable allocation of the construction and future maintenance costs in proportion to the current and future use for parking.

(3) 

Site layout: setbacks from arterial/collector road; outside storage; parking; landscaping requirements.

(a) 

Front yard setbacks shall be required both from the arterial/collector road and from any private commercial access drive. In order to promote an attractive appearance from the public arterial/collector road, no parking or accessory structure shall be located within the required front yard setback from the public arterial/collector road. Parking shall be allowed in the front yard if it is behind the required setback and is screened as approved by the Planning Board. Stormwater management basin(s) within the required front yard setback from the public arterial/collector road shall be designed and landscaped to resemble a naturally occurring landscaped feature.

(b) 

Parking shall be located at the side or rear yards and/or the front yards of the private commercial access drive. All parking and circulation areas shall be shown on the plan. Truck parking and circulation shall take place only in areas designated on the approved site plan and shall be sited and screened as needed in order to avoid hazardous circulation, adverse visual impacts, noise or vibration to adjacent uses and to avoid adverse visual impacts to any public roadway. Overnight or longer-term parking of cars, trucks, trailers or the like shall be prohibited unless where specifically approved by the Planning Board as part of the site use.

(c) 

Outside storage. No outside use, storage, display or placement of vehicles, items and/or materials ("storage area") shall be permitted except as specifically shown on an approved site plan and as expressly permitted by the Planning Board. The Planning Board may also impose specific limitations relating to such storage. Any storage area shall be laid out to avoid or limit its visibility from adjoining properties and public roadways, to maintain a neat and orderly appearance, to avoid any potential hazard or nuisance and to prevent unintended movement of materials off the site. Retained vegetation, berming, screen plantings and/or other screening or containment measures may be required by the Planning Board. The Planning Board may also restrict the area, height and location of such storage area subject to § 235-11.9C. Trailer and truck bodies, with or without a chassis, or any mobile storage container, shall not be parked in a storage area on-site for any reason unless approved on the plans by the Planning Board. Snow dump or snow storage areas shall be required to be designated on the plans by the Planning Board.

(d) 

Landscaping shall be provided as follows. Native plant species are preferred and shall be required except where specific waiver is granted by the Planning Board for site-specific habitat or other reasons.

[1] 

At least one tree for every 50 feet of site perimeter and one shrub or low planting species for every 20 feet of site perimeter shall be provided. The Planning Board may waive all or part of the perimeter landscaping requirement where it deems that the existing site conditions and/or retained site vegetation obviates the need for new perimeter landscaping.

[2] 

Parking areas shall be landscaped, and in addition to the perimeter landscape requirements at least 10% of the inside area of parking lots with more than 20 spaces shall be landscaped with trees, lawn and low planting species. Parking lot landscaping shall be distributed within the parking lot so as to avoid large unbroken areas of pavement.

[3] 

Additional landscaping shall be provided adjacent to the structure, for site plans involving structural uses, with at least 10% of the ground floor area of the building being established in trees and shrubs. For any building footprint in excess of 50,000 square feet, the Planning Board shall adjust the location of landscaping needed on the site.

[4] 

Landscape material being planted shall conform with procurement, transport and installation guidelines established by the American Nurseryman's Association standards. Plant material shall be vigorous and shall be free of defects, disfigurements, decay, infestation or injury. Trees shall be no smaller than two-and-a-half-inch caliper. Acceptable planting methods and standards and requirements for pruning, staking, mulching and protection shall be established by a licensed landscape architect and incorporated in the site plan. A landscape bond will be needed from the applicant and held in escrow by the Town Board to ensure completion of the landscaping on-site. The landscaping on-site should retain existing natural features and vegetation. New landscaping will blend into the surrounding landscape, utilizing indigenous materials and species of the area. Landscape plantings are an integral part of the approved plan and shall be maintained for the life of the use. All screening features and landscaping plantings provided pursuant to this subsection shall be required to be maintained for the life of the use and shall be replaced and/or restored as necessary in order to maintain their effectiveness. Any losses due to storm damage, disease or other factors shall be replaced in kind within a period not more than six months and this requirement shall be a condition of all commercial site plan approvals and all related certificates of occupancy. In the event that in-kind replacement is deemed to be impracticable, the user shall return to the Planning Board in order to modify the approved landscape/screening component of the plan accordingly.

[5] 

The Planning Board shall determine that no sight distance obstructions to driveways, public and private roads are created as a result of a site-landscaping plan. Both the mature height, the branching pattern and the placement of the plan shall be considered in evaluating the site landscape plan. Although all landscape material shall be properly maintained throughout the life of the site, landscape plans shall avoid reliance purely on maintenance to avoid creating sight distance obstructions. Instead, landscape plans shall include a careful and appropriate choice of plantings for this purpose.

[6] 

Plantings must be installed so that when of mature height they do not reach any overhead wires on site.

(4) 

Signage requirements. The Planning Board hereby is granted the authority under Town Law § 274-a(5) to waive any of the provisions of § 235-13 of this chapter (Sign Regulations) to provide for a balanced and, in appropriate cases, common signage plan. In this regard, the Planning Board may require that signage be freestanding and/or wall-mounted and of such dimensions and in such color and with such lighting as the Planning Board, in its discretion, believes appropriate for the project under review. Both residential development and commercial development shall include the street addresses on the outside of the structure. Commercial developments must also have the street address on the sign and mailbox, in letters ranging from eight inches to 12 inches, and residents must have the street addresses on a mailbox or clearly labeled in the front of the driveway in reflective letters. In no case, however, shall a waiver be granted for signage exceeding the maximum height requirements as set forth in § 235-13 or for signage of such size so as to constitute a billboard which is prohibited under § 235-9.1B. This allows for the sign to be closer to the street, which can be aesthetically desirable.

(5) 

Architectural design. Design review is required for all new nonagricultural commercial construction as well as for additions and exterior building modifications to existing commercial structures which would change the size of the building or the roof, siding, trim or window color and/or material. Exact replacement of materials that already received architectural design review pursuant to this subsection shall not require further review or approval. For the purposes of this § 235-16.5, any residential structure in excess of two dwelling units shall be considered a commercial use.

(a) 

The Planning Board may utilize consultants and such other resources as may be available to provide review and advice as it deems necessary, and in accordance with local law. The Planning Board shall require architectural elevations for all building faces and may require additional renderings in order to evaluate the appearance of the completed structure. The Board may review building material samples for construction materials at its discretion. All Planning Board approvals shall specify the style, material and color approved for all architectural reviews as an integral part of the action.

(b) 

All building designs and signage shall respect the local and regional architectural identity as depicted in the Historic Inventory Survey of the Town of Montgomery, which may be adopted and amended from time to time by the Town of Montgomery Town Board, used in conjunction with other resources, and also avoid generic franchise design, layout and finishes. All sides of a building shall be given comparable level of finish, trim and architectural ornamentation. Planning Board review of building design and layout, color, material, window choice and alignment shall take adjoining buildings into consideration and shall avoid creating disparate lines and elements.

(c) 

Large windowless expanses on building elevations are strongly discouraged and shall only be approved upon a specific finding of appropriateness by the Planning Board. Such a finding shall consider the potential visual impacts of the design on all surrounding properties and public roadways, including undeveloped sites. Mitigation measures may be required to the building exterior in order to provide visual relief.

(d) 

New buildings within, nearby or deemed a part of existing agricultural settings are encouraged to be designed to resemble converted barns and farm compounds, in order to blend harmoniously with the surrounding agricultural uses.

(e) 

Flat roofs should be avoided. In all cases where the size of the building renders a pitched roof impractical, the Planning Board may require mitigating measures in order to reduce the visual mass of the building and avoid a monotonous appearance.

(6) 

Review resources.

(a) 

The Planning Board and the applicant shall review the following publications, as applicable, to assist in the site plan review process:

[1] 

Town of Montgomery Nonresidential Design Guidelines, Attachment 8.

Editor's Note: Attachment 8 is included at the end of this chapter.

[2] 

Other guidelines as may from time to time be made part of Attachment 8.

(b) 

The Planning Board shall have the authority to require that the design of a commercial project be consistent with any section or sections of the above-listed resources. Copies of each of these guidelines are contained in Attachment 8 to this chapter and hereby are adopted as the official guidelines for the Town of Montgomery.

(7) 

Utilities. The Planning Board shall require that utility systems serving new commercial uses to be placed underground. The Planning Board may require that site plans provide for future extension of electric, cable and other utility lines so as to avoid or minimize disruption to existing and future uses and sites.

(8) 

Certification required. Every commercial site plan approved in the Town of Montgomery must bear the signature of the Planning Board Chairman or his or her designee. No building permit shall be issued in the absence of such signed plan. No certificate of occupancy shall be issued unless and until the applicant's licensed professional has certified in writing to the Town of Montgomery Building Department and to the Town of Montgomery Planning Board that the project has been constructed in conformance with the approved site plan, landscaping and lighting and that all improvements specified on the site plan have been constructed and that specified landscape plant species and specified light fixture catalog numbers have been installed. In the event that landscaping cannot and should not be installed due to the time of year, the Building Department, in its sole discretion, will issue such certificate of occupancy subject to and conditioned upon the installation of the complete landscaping plan not later than June 1 of the following year. All site plans must contain as a note the preceding two sentences.

D. 

Except as set forth below, the Planning Board shall have exclusive site plan review and decision-making jurisdiction for all uses of land and/or improvements other than one single-family or one two-family dwelling unit with accessory buildings or structures. Without limiting the foregoing, the Planning Board shall retain site plan jurisdiction for all future site plan amendments, including a proposed change of use regardless of whether or not a building permit otherwise is required.

(1) 

Exceptions for certain additions. Where an applicant seeks to construct an addition to a previously approved and lawful commercial structure and where such addition otherwise meets all of the Zoning Law requirements, does not exceed 50% of the footprint of the existing structure and where such addition also does not exceed 4,000 square feet of floor area, the Building Inspector shall have exclusive site plan decision-making authority. Notwithstanding, the Building Inspector must first refer complete copies of the application and plans to the Planning Board, to the Engineer for the Town, to the Planner for the Town, to the local fire district, to the applicable public highway regulatory agency and, if otherwise required, to the Orange County Department of Planning and must invite written, advisory comments from all such agencies. The Building Inspector, in his or her sole discretion, also may refer the application and plans to other agencies or entities, which are or may be interested in the application. Where such referral is required by law or regulation, the Building Inspector must so refer the application. The Building Inspector shall not grant a site plan approval for such applications until at least 30 days have elapsed from the date of his or her referral as set forth above. The Building Inspector may, at his or her sole option, incorporate any or all of such advisory comments in the final site plan approval. The Building Inspector must approve, approve with modifications or disapprove such site plan application within 62 days of the filing of the complete application and application fee unless the applicant grants extension of this sixty-two-day period. In rendering its decision, the Building Inspector may impose reasonable conditions and restrictions as are directly related to and incidental to such proposed site plan.

(2) 

Procedure for all other site plans. For all land uses not specifically excluded in Subsection D(1) above, the Planning Board, upon receipt of the complete application and fee, shall refer the completed site plan application to the Engineer for the Town, to the Planner for the Town, to the local fire district, to the applicable public highway regulatory agency and, if otherwise required, to the Orange County Department of Planning, as well as to any other agency or entity which is or may be interested in the subject of the application, in the judgment of the Planning Board, unless such additional referral is required by law or regulation, in which case the Planning Board must so refer the application. The Planning Board shall have the option of requiring that a public hearing be held on each site plan application. If a public hearing is to be held, the hearing must be noticed at least 10 days prior to the hearing, and the Planning Board must render a decision approving, or approving with modifications or disapproving such application within 62 days after the closure of the public hearing. In cases where no public hearing is required, the Planning Board must render its approval, approval with modifications or disapproval within 62 days of the Planning Board's receipt of a completed application and application fee. The time periods set forth above regarding decision-making may be extended upon the mutual consent of the Planning Board and the applicant. In rendering its decision, the Planning Board may impose reasonable conditions and restrictions as are directly related to and incidental to such proposed site plan. All Planning Board decisions under this subsection shall be exclusive and binding on the Building Inspector.

(3) 

Town Law Section § 274-a. Nothing herein contained in this Subsection D is intended to supersede the express provisions of Town Law § 274-a regarding site plan review.

E. 

In the case of special exception use or variance applications, the site plan shall be the subject of a preliminary review in accordance with the above procedure, before action is taken by the Planning Board or Zoning Board of Appeals. The Planning Board shall have the authority to require that both a special exception use permit application and a related site plan approval application be reviewed simultaneously.

F. 

Building permits for permitted uses, special exception uses or variances shall be in accordance with the conditions established by the Planning Board or Zoning Board of Appeals.

G. 

When an applicant for such a building permit or special exception use or site plan approval questions the interpretation of the site plan requirements, he may appeal the decision to the Building Inspector/Code Official for his ruling. If the applicant desires to appeal the ruling of the Building Inspector/Code Official he or she may appeal the same to the Zoning Board of Appeals per the procedure set forth in Town Law § 267-a.

A. 

Nothing in this chapter shall require any change in the plans, construction or designated use of a building or structure for which a lawful building permit has been issued prior to the effective date of this chapter or any amendment thereto affecting such building or structure, or the use thereof, provided that:

(1) 

The construction of such building or structure shall have been begun and diligently prosecuted within six months from the date of such permit.

(2) 

The entire building or structure shall be completed according to such filed and approved plans upon which the issuance of such permit was based, within one year from the effective date of this chapter or any such amendment thereto.

B. 

In the event that either Subsection A(1) or (2) above is not complied with, such building permit shall be revoked by the Building Inspector, unless an extension of time is granted by the Zoning Board of Appeals.

A. 

A reasonable number of temporary construction trailers and offices for uses for which site plan approval has been granted may be allowed by the Building Inspector on a construction or development site by temporary certificate of occupancy until a permanent certificate of occupancy has been issued for the use for which site plan approval has been granted. The location of these facilities shall be approved by the Building Inspector. The applicant must provide the Building Inspector with all data reasonably necessary for him/her to issue such temporary permit(s), including an application and fee for such temporary permit(s). The temporary building permit(s) shall automatically expire and the trailers shall be removed prior to the issuance of the certificate of occupancy for the permanent building(s). The applicant must sign a written agreement of removal as a condition of receipt of the temporary certificate of occupancy.

B. 

Temporary residence certificates of occupancy for temporary living quarters, including mobile homes, may be issued by the Building Inspector to local residents for temporary emergency housing due to fire, natural disaster or other emergency or condition of extreme duress. Such temporary living quarters must otherwise meet all applicable setback requirements. Such certificates shall be valid, based upon a written agreement for removal, until a permanent certificate of occupancy is issued for the primary residence, but not for a period in excess of six months. The applicant must provide the Building Inspector with all data reasonably necessary for him/her to issue such temporary permit(s), including an application and fee for a temporary building permit.

C. 

Temporary permits for the temporary office of construction trailers for emergency use due to an unforeseen or catastrophic situation may be issued by the Building Inspector for the duration of the need but not more than six months, and removed based upon written agreement at such time that a new building permit or other certification of occupancy or use can be issued for that portion of the property for which the trailer or office was required. The applicant must provide the Building Inspector with all data reasonably necessary for him/her to issue such temporary permit(s), including an application and fee for a temporary building permit.

A. 

It shall be unlawful to use or to permit the use of any building, structure, premises, lot or land, or part thereof, hereafter erected or altered, enlarged or moved, or put into use, in whole or in part, after the effective date of this chapter, or any building, structure, premises, lot or land, or part thereof of which the use is changed, until a certificate of occupancy has been obtained by the owner, as provided for under the Building Code.

B. 

No certificate of occupancy shall be issued for any building, structure, premises, lot or land unless the erection, construction, structural alteration, restoration, repair, or moving of any building or structure or part thereof and the intended use thereof are in conformity in all respects with the provisions of this chapter.

Fees for building permits and special use permits and/or site plan applications, for issuance of building permits, for certificates of occupancy and for administrative certifications shall be as provided in the Town Fee Schedule (see Attachment 7

Editor's Note: Attachment 7 is included at the end of this chapter.
).

A. 

Where a violation of this chapter is determined to exist, the Building Inspector shall serve notice either by certified mail or personally on the owner, agent or contractor of a building, structure, or lot where such violation has been committed or shall exist, and, where practical, on the lessee or tenant of a part of or of an entire building, structure, or lot where such violation has been committed or shall exist; and, where practical, on the agent, architect, contractor or any other such person who takes part or assists in such violation, or who maintains any building, structure, or lot in which any such violation shall exist.

B. 

Such notice shall require the removal of the violation within 10 days after service of the notice unless an emergency situation is determined by the Building Inspector to exist, in which case the notice may provide for removal of the violation within less than 10 days.

C. 

If the owner or its authorized representative believes that said violation is not authorized under this chapter and/or if more time is needed to cure said violation, an appeal must be filed with the Zoning Board of Appeals within time otherwise prescribed by law.

D. 

If those persons notified shall fail to remove such violation within the allotted time period, the Building Inspector shall charge them with such violation of this chapter before the appropriate court of law.

E. 

A violation of this chapter is hereby declared to be an offense, punishable by a fine not exceeding $350 or imprisonment not to exceed six months, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine of not less than $350 nor more than $700 or imprisonment for a period not to exceed six months, or both; and upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine of not less than $700 nor more than $1,000 or imprisonment for a period not to exceed six month, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this chapter shall be deemed misdemeanors, and, for such purpose only, all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

F. 

In addition to other remedies provided by law, any appropriate action or proceeding, whether by legal process or otherwise, may be instituted or taken to prevent the unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use to restrain, correct or abate such violation to prevent the occupancy of such building, structure or lot, or to prevent any illegal act, conduct, business or use in or about such premises.

A. 

The Town Board may from time to time on its own motion or on petition, or on recommendation of the Planning Board, amend, supplement or repeal the regulations and provisions of this chapter, including the Zoning Map, after public notice and hearing in accordance with state law.

B. 

All of the within amendments to the Zoning Law of the Town of Montgomery may be recodified, where necessary, to improve the clarity of the presentation of the entire Zoning Law of the Town of Montgomery, as amended.

C. 

Zoning Map amendments.

(1) 

Petitions for amendments of the Zoning Map shall be submitted in quadruplicate to the Town Clerk with an application fee of $75.

(2) 

Any petition for a change in the Zoning Map shall include the following:

(a) 

The name of the property owner.

(b) 

A map accurately drawn to an appropriate scale, showing the proposed zone district boundary changes, property lines, the calculated areas affected in acres or square feet, the street rights-of-way in the immediate vicinity, and the lands and names of owners immediately adjacent to and extending within 100 feet of all boundaries of the property to be rezoned and a map showing the requested change drawn to the scale of the official Zoning Map.

(c) 

A metes and bounds description of the proposed amendment.

D. 

The Town Board, by resolution adopted at a stated meeting, may fix the time and place of a public hearing on the proposed amendments and cause notice to be given.

E. 

Every such proposed amendment or change, whether initiated by the Town Board or by petition, shall be referred to the Planning Board for report before the public hearing is held thereon.

F. 

Proposed amendments that must be referred to the Orange County Planning Department under the provisions of § 239-m of Article 12-B of the General Municipal Law shall be transmitted as soon as possible and in any case prior to the public hearing.

G. 

The Town Board may require a petitioner to give additional forms of public notice or notice to adjacent property owners.

H. 

The Town Board body shall reserve decision on all zoning amendments or changes which must be referred to the Orange County Planning Department until its report has been presented, provided that such report is presented within a period of 30 days after the Orange County Planning Department receives such referral.

I. 

If required by the Town Board upon adoption of a change in the Zoning Map, the municipality or the petitioner shall cause a monument to be placed at one location on the property's street frontage and also file with the municipal Clerk and the Building Inspector copies of an accurate survey description and drawing of the area affected by such amendment.

If any section or subsection, paragraph, clause, phrase or provision of this chapter or the location of any district boundary shown on the Zoning Map that forms a part hereof shall be adjudged invalid or held unconstitutional, the same shall not affect the validity of this chapter or Zoning Map as a whole or any part of provision hereof other than the part so adjudged to be invalid or unconstitutional.

An ordinance entitled “ZONING ORDINANCE, TOWN OF MONTGOMERY” and all amendments thereof enacted prior to the passage of this amending local law is hereby repealed by the enactment of this "TOWN OF MONTGOMERY LOCAL ZONING LAW OF 1971, AND ALL AMENDMENTS THEREOF."

This chapter and all amendments thereto shall take effect upon enactment and filing in the manner provided by law.