Montgomery Town City Zoning Code
§ 235-15.1
Organization, general procedure and jurisdiction.
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 Town of Montgomery Local Law No. 2 of 1992 as may be amended from time to time.[1]
B.
The Zoning Board of Appeals shall have all the powers and duties prescribed by law and by this chapter and New York State Town Law 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, New York State Town Law and by the Subdivision Regulations of the Town of Montgomery[2] and shall review and decide all applications for special 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 New York State 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) (Chapter 692 of the Laws of 1991, effective July 1, 1992, and Chapter 248 of the Laws of 1992, effective July 1, 1992) are hereby superseded to the extent that the requirement that every decision of the Zoning Board of Appeals shall be filed in the office of the Town Clerk within five business days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 § 235-15.4D(4) and (5) for the filing requirements for actions of the Planning Board.
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Unless otherwise superseded, all use and area variances shall be defined and shall meet the standards as set forth in New York State Town Law §§ 267-a and 267-b, as amended.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.