Bergenfield City Zoning Code
ARTICLE V
Board of Adjustment
§ 186-28 Membership; appointment; terms.
A.
The members of the Board of Adjustment shall be appointed by the Borough Council. All members shall be residents of the Borough, and no member may hold any elective office or position under the municipality. Pursuant to the provisions of N.J.S.A. 40:55D-69, there is hereby re-created a Board of Adjustment to consist of seven members.
B.
All members of the Board in office on the effective date of this chapter shall continue in office until the completion of their terms as determined by the law in effect prior to the effective date of this chapter. The terms of the members first appointed after the adoption of this chapter shall be as follows: two persons shall be appointed for a three-year term. One person shall be appointed to a four-year term. All terms of office of members of the Board of Adjustment, after the initial appointment, shall be for terms of four years.
C.
The Borough Council shall appoint two alternate members of the Board of Adjustment for a term of two years each. Said alternate members shall be designated by the Borough Council as “Alternate Number 1” and “Alternate Number 2” and shall vote in the order of their numerical designations in the absence or disqualification of any regular member or members.
[Amended 3-21-2006 by Ord. No. 06-2370]
D.
Organization. The Board of Adjustment shall select a Secretary who may be a member of the Board or a municipal employee and shall elect a Chairman and a Vice Chairman from its members. The Board may employ or contract for and fix the compensation of legal counsel experts and other staff and services as it deems necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the Borough Council.
§ 186-29 Powers.
A.
The Board of Adjustment shall have the power to:
(1)
Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of the Zoning Ordinance.
(2)
Hear and decide in accordance with the provisions of any such ordinance, requests for interpretation of the Zoning Map or Ordinance or for decisions upon other special questions upon which such Board is authorized to pass by any ordinance.
(3)
Where by reason of exceptional narrowness, shallowness or exceptional topographic conditions, or by reasons of other extraordinary and exceptional situation or condition of such piece of property, the strict application of any zoning regulation would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship; provided, however, that no variance shall be granted under this subsection to allow a structure or use in a district restricted against such structure or use, and provided further that the proposed development does not require approval by the Planning Board of a subdivision, site plan or conditional use approval in conjunction with which the Planning Board shall review a request for a variance pursuant to Article 7, Subsection 47a of the Municipal Land Use Act (N.J.S.A. 40:55D-60).
(4)
Grant a variance to allow a structure or use in a district restricted against such structure or use in particular cases and for special reasons, but only by affirmative vote of at least 2/3 of the full authorized membership of the Board.
B.
No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the Zone Plan and Zoning Ordinance. An application under this section may be referred to any appropriate person or agency, including the Planning Board, for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.
§ 186-30 Appeals and applications.
A.
Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of an administrative officer of the Borough based on or made in the enforcement of the Zoning Ordinance. Such appeals shall be taken within 65 days of said decision by filing a notice of appeal with the office from whom the appeal is taken, specifying the grounds of such appeal. Said officer shall immediately transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
B.
A developer may file an application for development with the Board of Adjustment for action under any of its powers without prior application to an administrative officer.
C.
If an application for development is filed with the Board of Adjustment, whether or not an appeal from a decision of the Construction Officer is also taken, the applicant shall submit nine copies of his completed application to the Secretary of the Board of Adjustment. The time for the Board's review shall not begin to run until the submission of a complete application with the required fee. Unless the applicant is informed in writing by the Secretary of the Board of Adjustment within 45 days of the actual submission of the application that it is incomplete, said application shall be deemed complete as of the date it was submitted.
D.
A complete application for development under this article shall consist of the following:
(1)
A properly completed variance information application form.
(2)
A fee of $50.
(3)
If subdivision and/or site plan and/or conditional use approval is also sought as part of an application for a variance pursuant to § 186-29A(2) of this chapter, the applicant shall also include the information and documents required pursuant to the provisions of § 186-87 of this chapter.
E.
The Secretary of the Board of Adjustment shall distribute the application for review and reports, and where required, approval as follows:
§ 186-31 Time for decision.
A.
The Board of Adjustment shall render a decision not later than 120 days after the date an appeal is taken from the decision of the Zoning Enforcement Officer or the submission of a complete application for development to the Board of Adjustment pursuant to § 186-31B of this chapter.
[Amended 7-17-1979 by Ord. No. 1134]
B.
Failure of the Board to render a decision within such one-hundred-twenty-day period or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.
§ 186-32 Modification on appeal.
The Board of Adjustment may reverse or affirm, wholly or in part, or may modify the action, order, requirement, decision, interpretation or determination appealed from, and to that end, the Board shall have all the powers of the administrative officer from whom the appeal is taken.
§ 186-33 Stay of proceedings by appeal; exception.
An appeal to the Board of Adjustment shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the officer from whose action the appeal is taken certifies to the Board after the notice of appeal is filed with him that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed except by order of the Superior Court.
§ 186-34 Other powers of Board of Adjustment.
A.
The Board of Adjustment shall have the power to grant to the same extent and subject to the same restrictions as the Planning Board subdivision or site plan approval pursuant to Article IX of this chapter or conditional use approval pursuant to § 186-18 of this chapter, whenever the Board of Adjustment is reviewing an application for approval of a variance pursuant to § 186-29A(4) of this chapter.
B.
Whenever an application for development requests relief pursuant to Subsection A of this section, the Board of Adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the Secretary of the Board of Adjustment or within such further time as may be consented to by the applicant. Failure of the Board of Adjustment to act within the period prescribed shall constitute approval of the application, and a certificate of the Secretary of the Board of Adjustment as to the failure of the Board of Adjustment to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval, herein required, and shall be so accepted by the county recording officer for purposes of filing subdivision plats.
C.
Whenever review or approval of the application by the County Planning Board is required by Section 5 of P.L. 1968, c. 285 (N.J.S.A.40:27-6.3), in the case of a subdivision, or Section 8 of P.L. 1968, c. 285 (N.J.S.A.40:27-6.6), in the case of a site plan, the Board of Adjustment shall condition any approval that it grants upon timely receipt of a favorable report on the application by the Planning Board or by failure to report thereupon within the required time.
D.
An application under this section may be referred to any appropriate person or agency for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.
E.
The Board of Adjustment shall refer any application for subdivision or site plan approval under this section to the Planning Board for its report before it takes final action thereon. Such reference shall not extend the time for action by the Board of Adjustment, whether or not the Planning Board has submitted its report. Whenever the Planning Board shall have made a recommendation regarding a matter authorized by this chapter to the Board of Adjustment, such recommendation may be rejected only by a majority of the full authorized membership of the Board of Adjustment.
§ 186-35 Expiration of variance.
Any variance from the terms of this chapter hereafter granted by the Board of Adjustment permitting the erection or alteration of any structure or structures or permitting a specified use of any premises shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by said variance, or unless such permitted use has actually been commenced, within one year from the date of entry of the judgment or determination of the Board of Adjustment; except, however, that the running of the period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the Board of Adjustment to the governing body, or to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding.