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. Appeals. 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.
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:
(1) Determination of the meaning of any portion of the
text of this chapter or of any condition or requirement specified
or made under the provisions of this chapter.
(2) Determination of the exact location of any district
boundary shown on the Zoning Map.
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 where its literal interpretation
would cause practical difficulties or unnecessary hardships, as defined
in this section, in such manner as to observe the spirit of the chapter,
secure public safety and welfare and do substantial justice.
(1) Bulk variances. Where, because of practical difficulty,
an applicant requests a variance of the bulk requirements of this
chapter, the Board may grant a variance in the application of the
provisions of this chapter in the specific case, provided that, as
a condition to the grant of any such variance, the Board shall make
a specific finding that the application of the requirements of this
chapter to the land in question creates such practical difficulty.
In making this determination, the Board shall make each and every
one of the following findings:
(a)
The variation is not substantial in relation
to the requirement.
(b)
The effect of any increased population density
which may thus be produced upon available services and facilities
is not significant.
(c)
A substantial change in the character of the
neighborhood or a substantial detriment to adjoining properties will
not be created.
(d)
The difficulty cannot be alleviated by some
method feasible for the applicant to pursue other than a variance.
(e)
In view of the manner in which the difficulty
arose and considering all of the above factors, the interests of justice
will be served by allowing the variance.
(f)
The variation would not cause adverse aesthetic,
environmental or ecological impacts on the property or on surrounding
areas.
(g)
The alleged difficulty was not self-created,
which consideration shall be relevant to the decision of the Board
of Appeals but shall not necessarily preclude the granting of the
bulk variance.
[Added 6-22-2005 by L.L. No. 4-2005]
(2) Use variances. Where, because of unnecessary hardship
relating to the land, an applicant requests a variance for a use not
allowed in the district in which the land is located, the Board may
grant a variance in the application of the provisions of this chapter
in the specific case, provided that as a condition to the grant of
any such variance, the Board shall make each and every one of the
following findings:
(a)
After considering all permitted uses, the property
in question cannot yield a reasonable return if used only for a purpose
allowed in that district.
(b)
The plight of the owner is due to unique circumstances
affecting the property which is the subject of the application and
not to general conditions in the neighborhood.
(c)
The use to be authorized by the variance will
not alter the essential character of the locality.
(d)
The use to be authorized by the variance is
in reasonable harmony with the intent of this chapter.
(e)
The unnecessary hardship claimed as a ground
for the variance has not been created by the owner or by predecessor
in title; mere purchase of the land subject to the restrictions sought
to be varied shall not itself constitute a self-created hardship.
(f)
Within the intent and purposes of this chapter,
the variance, if granted, is the minimum variance necessary to afford
relief. To this end, the Board may permit a lesser variance than that
applied for.
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 automatically expire 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, or 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]
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.