A Board of Appeals of five members is hereby
established. The first appointments shall be for terms so fixed that
one shall expire annually, and succeeding appointments shall be for
five-year terms. The Mayor shall designate the Chairman from the Board
of Appeals' membership.
The Board of Appeals shall have all the powers
and duties prescribed by statute and by this chapter, which are more
particularly specified as follows, provided that none of the following
provisions shall be deemed to limit any power of the Board that is
conferred by law.
A.
The Board of Appeals shall hear and decide appeals
from and review any order, requirement, decision or determination
of the Building Inspector or such other official charged with the
enforcement of this chapter. The Board of Appeals shall not hear any
appeal from nor review any order, determination, requirement, decision,
or revocation of the Building Inspector where such order, determination,
requirement, decision, or revocation has been directed by the Village
Board. In addition, the Board of Appeals may not waive the requirement
for site development plan application as required in any part of this
chapter, or a condition of site plan approval imposed by the Planning
Board, or a condition imposed by the HPPC when granting a certificate
of appropriateness.
[Amended 8-16-2023 by L.L. No. 4-2023]
B.
Interpretation. On an appeal from any order, requirement,
decision or determination made by an administrative official or by
the Building Inspector to decide any of the following questions:
C.
Variances. On appeal from an order, requirement, decision
or determination made by the Building Inspector, or on referral of
an applicant to the Board by an approving agency acting pursuant to
this chapter, the Board of Appeals is authorized to vary or modify
the strict letter of this chapter; provided, however, that said variance
is in such manner as to observe the spirit of the chapter, protect
the character of the community and neighborhood as represented by
the use and bulk tables enacted by the Village Board, secure public
safety and welfare and do substantial justice as between the applicant,
the general community and the specific neighborhood impacted by the
requested variances.
[Amended 6-22-2005 by L.L. No. 4-2005; 8-16-2023 by L.L. No. 4-2023]
(1)
Area
variances.
(a)
The Board of Appeals may grant area variances from the bulk requirements
of this chapter. In making its determination, the 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:
[1]
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;
[2]
Whether the benefit sought by the applicant can be achieved by some
method, feasible for the applicant to pursue, other than an area variance;
[3]
Whether the requested area variance is substantial;
[4]
Whether the proposed variance will have an adverse effect or impact
on the physical or environmental conditions in the neighborhood or
district; and
[5]
Whether the alleged difficulty was self-created; which consideration
shall be relevant to the decision of the Board of Appeals but shall
not necessarily preclude the granting of the area variance.
(b)
Minimum area variance. The Board, if granting an area variance according
to the standards set forth in this chapter, shall only grant the minimum
variance that it shall deem necessary and adequate and at the same
time preserve and protect the character of the neighborhood and the
health, safety, and welfare of the community.
(c)
Balancing test. When considering whether to grant area variances,
the Board shall also consider that the bulk requirements enacted by
the Village Board were intended to effectuate a primary goal of the
Comprehensive Plan, which was to maintain the existing scale of residential
neighborhoods, protect the rural character of the Village, and reasonably
scale commercial to residential development to provide the greatest
opportunity for the quiet enjoyment of residential life in the Village.
In residential districts, this protection is best described by the
floor-area ratio of building to lot size. The Village Board considers
any increase whatsoever in floor-area ratio to be substantial and
will result in an undesirable change in the character of the neighborhood
in which it is proposed. Substantiality and undesirable result shall
be considered rebuttable presumptions where all such variances are
requested and should be granted only where the Zoning Board determines
that all other factors weigh strongly in favor of the applicant. Similarly,
the Village Board considers any variance in floor-area ratio, maximum
lot coverage and transitional yards substantial and undesirable for
all nonresidential development, including, but not limited to, commercial,
religious, educational, and public assembly uses and should be granted
only where the Zoning Board determines that all other factors weigh
strongly in favor of the applicant.
(2)
Use
variances. Where an applicant requests a variance to establish a use
not allowed in the district in which the land is located, the Board
may grant a use variance, provided the following standards are met:
(a)
No use variance shall be granted by the 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 Board
of Appeals that for each and every permitted use under the zoning
regulations for the particular district where the properly is located:
[1]
The applicant cannot realize a reasonable return, provided that lack
of return is substantial as demonstrated by competent financial evidence;
[2]
That the alleged hardship relating to the property in question is
unique, and does not apply to a substantial portion of the district
or neighborhood;
[3]
That the requested use variance, if granted, will not alter the essential
character of the neighborhood; and
[4]
That the alleged hardship has not been self-created.
(b)
Minimum use variance. The Board of Appeals, in the granting of use
variances, shall grant the minimum variance that it shall deem necessary
and adequate to address the unnecessary hardship proved by the applicant
and at the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
D.
Extensions across district boundaries. In appropriate
cases where a lot lies within two districts, the Board of Appeals
may permit the extension of existing or proposed permitted accessory
off-street parking space across a district boundary, under such conditions
as will safeguard the character of the district into which such use
is extended. However, no such extension shall exceed 75 feet, measured
at right angles to such district boundary. The power under this subsection
shall not permit the moving of the zoning district line but only the
extension of the accessory off-street parking space.
E.
The Board of Appeals, after a public hearing, shall
have the power to direct the Building Inspector to issue a building
permit, certificate of occupancy or certificate of use, as the case
may be, subject to other applicable laws, codes, rules and regulations.
F.
Expiration of relief. Any grant of relief by the Board
of Appeals pursuant to this chapter shall expire by operation of law
if a building permit has not been issued, in accordance with the plans
for which such relief was granted, within one year after the date
on which such relief was granted, provided further that the structure
is built within two years from the dale of the building permit. If
such relief was granted within the context of an application for site
plan, subdivision, special permit or other approval from the Planning
Board or the Village Board, then such relief shall expire at the time
such site plan, subdivision, special permit, or other approval shall
expire. In the event judicial review of such relief by the Board of
Appeals is sought, then the expiration periods set forth above shall
be tolled pending the date of entry of the final order in such judicial
review proceedings, including all appeals.
[Added 12-17-2008 by L.L. No. 7-2008; amended 8-16-2023 by L.L. No. 4-2023]
A.
The Board of Appeals may adopt rules and regulations
with respect to procedure before it and with respect to any subject
matter over which it has jurisdiction, subject to approval of the
Village Board. Such regulations shall include provisions for conduct
of meetings, notification of parties, form of applications and filing
of decisions.
B.
Every decision of the Board of Appeals shall be recorded
in accordance with a standard format adopted by the Board, shall fully
set forth the circumstances of the case and shall contain a record
of the findings on which the decision is based. Every decision of
said Board shall be by resolution, and each such resolution shall
be filed in the offices of the Village Clerk-Treasurer and Building
Inspector by case number.
C.
All appeals and applications made to the Board of
Appeals shall be in writing and shall be accompanied by a fee as determined
in the Standard Schedule of Fees, as may be adopted from time to time
by resolution of the Village Board.[1]
[1]
Editor's Note: The Standard Schedule of Fees
is on file in the Village Clerk-Treasurer's office.
D.
The Board of Appeals shall conduct a public hearing for the purpose of taking testimony and evidence with respect to each matter brought before it for resolution. Each such public hearing shall be advertised in the form of a legal notice published in an official newspaper of the Village at least 10 days prior thereto. At the time of a public hearing, the applicant shall submit an affidavit stating that he has notified by first-class mail with certificate of mailing each adjacent or opposite owner of property as indicated on the application for subdivision approval at least 10 days prior to the public hearing and that the applicant has placed at least two posters provided to him by the Clerk of the Board of Appeals on the four closest public roads in visible locations surrounding the proposed subdivision property, at least 500 feet apart if possible. The notice to be mailed shall conform to the official form of notice set forth in Appendix A to Chapter 163.[2]
[Added 5-17-2017 by L.L.
No. 1-2017]
[2]
Editor's Note: Appendix A is on file in the Village Clerk-Treasurer's
office.
A.
Matters to be referred. In accordance with §§ 239-l, 239-m, and 239-n of the General Municipal Law of the State of New York, and subject to the provisions of Subsection E hereof, any application for a variance for real property lying within a distance of 500 feet of the following shall be referred to the Rockland County Department of Planning not less than 35 days prior to a public hearing:
[Amended 6-17-2009 by L.L. No. 2-2009]
(1)
The
boundary of any other municipality.
(2)
The
boundary of any existing or proposed county or state park or other
recreation area.
(3)
The
right-of-way of any existing or proposed county or state parkway,
thruway, road or highway.
(4)
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.
(5)
The
existing or proposed boundary of any county- or state-owned land on
which a public building or institution is situated.
B.
Rockland County Department of Planning recommendation.
Failure of the Rockland County Department of Planning to report its
recommendations within 30 days after receipt of a full statement of
such referred material or such longer period as may have been agreed
upon by it and the Board of Appeals shall be construed as approval.
C.
Effect of negative report. If the Rockland County
Department of Planning disapproves the proposed variance or recommends
modification thereof, the proposal shall not become effective except
by a vote of a majority plus one of all members of the Board of Appeals
and after adoption by such Board of a resolution fully setting forth
the reasons for such contrary action.
D.
Report filing. A report of the decision of the Board
of Appeals shall be filed with the Rockland County Department of Planning
if referral was initially required.
E.
Variances not subject to referral.
[Added 6-17-2009 by L.L.
No. 2-2009[1]]
(1)
Notwithstanding any other provision of this section, the variances
listed on the attached Schedule A are of local rather than countywide
concern and are not subject to referral to the Rockland County Department
of Planning ("Department") under General Municipal Law § 239-m.
|
KEY:
| |||
|---|---|---|---|
|
W
|
=
|
Waived from County Planning review
| |
|
S
|
=
|
Send to County Planning for review
| |
|
Schedule A: Applications to be Waived from County Planning
Review
| |||
|---|---|---|---|
|
Not Abutting but Within 500 Feet of Municipal Boundary,
State or County Road, State or County Park, County Stream, Other State
or County Facility, Long Path
|
Directly Adjacent to Municipal Boundary, State or County
Road, State or County Park, County Stream, Other State or County Facility,
Long Path
| ||
|
Type of Action Proposed
| |||
|
VARIANCES
| |||
|
Front yard setback
|
W
|
S
| |
|
Side yard setback
|
W
|
S
| |
|
Rear yard setback
|
W
|
S
| |
|
Minimum lot frontage
|
S
|
S
| |
|
Building height
|
S
|
S
| |
|
Lot width
|
W
|
S
| |
|
Floor area or floor area ratio
|
S
|
S
| |
|
Reduction in required parking or loading spaces
|
W
|
S
| |
|
Signage: change in number, size, location, etc.
|
W
|
S
| |
|
Expansion of nonconforming use for mobile homes
|
W
|
S
| |
|
Lot area
|
S
|
S
| |
|
Any other bulk variance
|
W
|
S
| |
|
ALL OTHER TYPES OF ACTIONS
| |||
|
Zone change, special permits not listed above, amendment to
Zoning Ordinance, site plan, subdivisions, use variance, etc.
|
S
|
S
| |
(2)
The public hearing minutes of the Zoning Board of Appeals shall
specify which matters are not being referred to the Department, and
for matters not subject to a public hearing, minutes of the meeting
at which such board took action shall specify which matters are not
being referred, pursuant hereto. All other applicable requirements
of § 239-m of the General Municipal Law and the Rockland
County Charter remain in effect.
(3)
Notwithstanding the terms of this subsection, the Zoning Board
of Appeals may refer any matter to the Department for its review,
recommendation and report. A matter so referred, on which the Department
recommends modification or disapproval, shall require the referring
Board to meet the voting requirements set forth in § 239-m
of the General Municipal Law.
(4)
The variances listed on Schedule A shall not be exempt from
the review, approval or permit-issuing authority of any other applicable
county department or agency or of any pertinent state or federal agency.
[1]
Editor's Note: This local law also provided as follows in
its Section 3: "Pursuant to the authority given to the Board of Trustees
by § 10 of the Municipal Home Rule Law, with respect to
the actions identified in Schedule A, this Board hereby overrides
those portions of §§ 239-m and 239-n of the General
Municipal Law which would otherwise require referral of said actions
to the Rockland County Department of Planning."
Any person aggrieved by any decision of the
Board of Appeals hereunder may, within 30 days of the filing of the
decision with the office of the Village Clerk-Treasurer, appeal pursuant
to Article 78 of the Civil Practice Laws and Rules.
[Amended 6-22-2005 by L.L. No. 4-2005]
A.
In addition to regular members appointed and serving as per § 195-107, the Village Board of the Village of Montebello shall appoint two temporary alternate members to the Board of Appeals to serve as provided herein. Said alternate members shall attend all meetings of the Board, and the Chairman of the Board of Appeals shall designate the alternate members as acting members as necessary when absence of regular members of the Board or a conflict of interest of regular members of the Board would otherwise prevent five members of the Board from considering any pending matter. The alternate members shall be so designated on a rotating basis so that each alternate member shall be afforded an equal opportunity to serve, except that the Chairman shall designate the alternate member with the longer remaining term if the particular matter is likely to continue beyond the current official year. Once designated to serve on a particular matter before the Board, the alternate member shall have the same powers and duties as regular members of the Board until that matter is concluded. Any determination by the Board consisting of alternate members shall have the same weight and be entitled to the same authority as the act or deed of the regular Board of Appeals and all laws, statutes and regulations shall apply and be applied with equal force and effect. Alternate members appointed pursuant to this section shall be paid for their respective services as fixed by resolution of the Village Board.
B.
Both alternate members shall serve two-year terms
expiring at the end of the official year except in the first year
of the application of this chapter, to stagger the terms, one alternate
member shall be appointed for one year and one for two years. Their
successors shall be appointed for a term of two years after the expiration
of the terms of their predecessors in office. If a vacancy shall occur
otherwise than by expiration of term, it shall be filled by the Village
Board for the unexpired term. The Village Board shall have the power
to remove any alternate member of the Board of Appeals for cause,
after a Public Hearing if one is requested.
C.
Although both alternate members of the Board of Appeals
shall attend all meetings of the Board of Appeals, they shall have
no power to participate in any actions of the Board of Appeals except
as provided herein.
