Elmwood Park City Zoning Code
ARTICLE XVI
Zoning Board of Adjustment.
§ 34-64.1 Establishment and Composition.
[1969 Code § 88-54; Ord. No. 1978-6; Ord. No. 04-2 § I]
a.
A Zoning Board of Adjustment is hereby established pursuant to N.J.S.A. 40:55D-69 et seq. consisting of seven residents of the Borough of Elmwood Park appointed by the Mayor with the advice and consent of the Council to serve for terms of four years from January 1 of the year of their appointment. The terms of the members first appointed shall be so determined that to the greatest practicable extent the expiration of such terms shall be distributed evenly over the first four years after their appointment; provided that the initial term of no member shall exceed four years. Thereafter the term of each member shall be for four years. Nothing in this chapter shall, however, be construed to affect the term of any present member of the Zoning Board of Adjustment, all of whom shall continue in office until the completion of the term for which they were appointed.
b.
No member of the Zoning Board of Adjustment may hold any elective office or position under the municipality.
c.
The Mayor may also appoint two alternate members to the Zoning Board of Adjustment. The alternate members shall be designated at the time of appointment as Alternate Number One and Alternate Number Two. The terms of the alternate members shall be for two years except that the terms of the alternate members be such that the term of not more than one alternate member shall expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. Notwithstanding the aforesaid, the initial terms of the members shall be arranged so as to accomplish the intent of this subsection.
The alternate members may participate in discussion proceeding but may not vote except in the absence or disqualification of a regular member. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, "Alternate Number One" shall vote.
The term of any existing alternate member of the Zoning Board of Adjustment, for purposes of this Ordinance, shall be ratified and confirmed and said appointee shall be designated as "Alternate Number One."
d.
A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
§ 34-64.2 Officers.
[1969 Code § 88-55; Ord. No. 1978-6]
The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary who may or may not be a Board member or another municipal employee.
§ 34-64.3 Attorney.
[1969 Code § 88-56; Ord. No. 1978-6]
There is hereby created the office of Attorney to the Zoning Board of Adjustment. The Zoning Board of Adjustment may annually appoint an attorney who shall be an attorney other than the Municipal Attorney.
§ 34-64.4 Experts and Staff.
[1969 Code § 88-57; Ord. No. 1978-6]
The Zoning Board of Adjustment may also employ or contract for and fix the compensation of such experts and other staff and services as it may deem necessary. The Board shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the Governing Body for its use.
§ 34-64.5 Rules and Regulations.
[1969 Code § 88-58; Ord. No. 1978-6]
The Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter. Copies of the rules and regulations adopted by the Board of Adjustment shall be made available and shall be furnished to any person requesting same at the Borough Clerk's office. In the issuance of subpoenas, administration of oaths and taking of testimony, the provisions of the County and Municipal Investigations Law of 1953, N.J.S.A. 2A:67A-1 et seq., shall apply.
§ 34-64.6 General Powers.
[1969 Code § 88-59; Ord. No. 1978-6]
a.
The powers of the Zoning Board of Adjustment shall be in accordance with N.J.S.A. 40:55D-69 et seq. and amendments and supplements thereto, and with the provisions of this chapter.
b.
It is further the intent of this chapter to confer upon the Zoning Board of Adjustment as full and complete powers as may lawfully be conferred upon such Board, including, not by way of limitation, the authority, in connection with any case, action or proceeding before the Board, to interpret and construe the provisions of this chapter, or any term, clause, sentence or word hereof, and the Zoning Map, in accordance with the general rules of construction, applicable to legislative enactments.
c.
The Board may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances from the terms of this chapter in accordance with the general or specific rules contained herein, and with the general rules hereby laid down that equity shall be done in cases where the strict construction of the provisions of this chapter would work undue hardship. The powers and duties of the Board having been delegated to and imposed upon it by statute, the Board shall in all cases follow the provisions applicable to it in N.J.S.A. 40:55D-69 et seq. or subsequent statutes in such case made and provided, and it shall from time to time furnish to any person requesting the same a copy of its rules and information as to how appeals or applications may properly be filed with the Board for its decision thereon.
§ 34-64.7 Appeals and Applications.
[1969 Code § 88-60; Ord. No. 1978-6]
a.
Appeals to the Board of Adjustment may be taken by any interested party. Each appeal shall be taken within 65 days prescribed by the statute by filing a notice of appeal with the officer from whom the appeal was taken, together with three copies of said notice with the Secretary of the Board of Adjustment. Said notice of appeal shall specify the grounds for said appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
b.
Applications addressed to the original jurisdiction of the Board of Adjustment without prior application to an administrative officer, shall be filed with the Secretary of the Zoning Board of Adjustment. Three copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than 10 days prior to the date set for hearing, the applicant shall also file all plot plans, maps, or other papers required by virtue of any provision of this chapter or any rule of the Board of Adjustment. The applicant shall obtain all necessary forms from the Secretary of the Zoning Board of Adjustment. The Secretary of the Board shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board.
c.
An appeal stays all proceedings in furtherance of the action in respect of which the decision appealed from was made, unless the officer from whom the appeal is taken certifies to the Board of Adjustment after the notice of appeal shall have been 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 cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Adjustment or by the Superior Court of New Jersey on application or notice to the officer from whom the appeal is taken and on due cause shown.
§ 34-64.8 Power to Reverse or Modify Decisions.
[1969 Code § 88-61; Ord. No. 1978-6]
In exercising the above mentioned power, the Board of Adjustment may, in conformity with the provisions of N.J.S.A. 40:55D-1 et seq. or amendments thereto or subsequent statutes applying reverse or affirm wholly or partly or may modify the order, requirement, decision, or determination appealed from, and make such other requirement, decision or determination as ought to be made, and to that end have all the powers of the administrative officer from whom the appeal was taken.
§ 34-64.9 Duration of Variance.
[1969 Code § 88-62; Ord. No. 1978-6]
Any variance from the terms of this chapter hereafter granted by the Board of Adjustment or Planning Board, 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 publication of the notice of the judgment or determination of the Board of Adjustment; except however: a. 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; and b. that where preliminary or final site plan or subdivision approval has been granted, expiration of any variance on which such approval was granted shall be in accordance with Subsection 34-59.6 and 34-59.7 of this chapter and N.J.S.A. 40:55D-49 and D-52.
§ 34-64.10 Powers Granted by Law.
[1969 Code § 88-63; Ord. No. 1978-6]
a.
The Board of Adjustment shall have such powers as are granted by law 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 official or agency based on or made in the enforcement of the Zoning Ordinance.
2.
Hear and decide requests for interpretation of the map or Zoning Ordinance, or for decisions upon other special questions upon which such Board is authorized by the Zoning Ordinance to pass.
3.
Where by reason of exceptional narrowness, shallowness, or shape of a specific piece of property, or by reason of exceptional topographic conditions, or by reason of other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation in the Zoning Ordinance would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the owner of such property, to grant upon an application or an appeal relating to such property, a variance from such strict application, 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 further provided that the proposed development does not require approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board shall review a request for a variance pursuant to Subsection 34-63.7h of this chapter.
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 the 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 provisions 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. Any 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.
§ 34-64.11 Additional Powers.
[1969 Code § 88-64; Ord. No. 1978-6]
a.
The Zoning Board of Adjustment shall, in addition to the powers specified in Subsection 34-64.10 of this Article, have power given by law to:
1.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a building or structure in the bed of a mapped street or public drainageway, flood control basis or public area reserved on the Official Map.
2.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.
b.
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 N.J.S.A. 40:55D-37 to N.J.S.A. 40:55D-59 or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever the Board is reviewing an application for approval of a use variance pursuant to Subsection 34-64.10a4 of this chapter.