Montebello City Zoning Code
ARTICLE XV
Board of Appeals
§ 195-107 Creation, appointment and organization.
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.
§ 195-108 Powers and duties.
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]
§ 195-109 Rules of Procedure.
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.
§ 195-110 Referral to Rockland County Department of Planning.
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."
§ 195-111 Appeals from Board of Appeals determinations.
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.
§ 195-112 Alternate members.
[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.