Montgomery Town City Zoning Code
§ 235-6.5
Special regulations applicable to certain uses.
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.
B.
Accessory dwelling use.
(1)
Permitted in the RM-1, RA-1 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 RM-1, RA-1, and RA-.5 Zoning Districts provided all the conditions of this section have been met.
[Amended 10-6-2022 by L.L. No. 10-2022]
(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, approximately 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.[1]
[1]
Editor's Note: The Fee Schedule is included as an attachment to this chapter.
(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.