Fair Lawn City Zoning Code
ARTICLE VI
Zoning Board of Adjustment and Planning Board
§ 125-57 Zoning Board of Adjustment.
A.
Establishment of Zoning Board of Adjustment.
(1)
The Borough of Fair Lawn Board of Adjustment, created pursuant to N.J.S.A. 40:55D-69 et seq., shall consist of seven regular members and two alternate members, each of whom shall be residents of Borough of Fair Lawn and shall be appointed by the Borough Council.
(2)
Regular members shall be appointed for four years and alternate members shall be appointed for two years. There shall be four alternate members designated Alternate No. 1, Alternate No. 2, Alternate No. 3, and Alternate No. 4, if they are appointed simultaneously, such a designation shall be made at the time of their appointment. Alternate members may participate in discussions of the proceedings 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 members shall vote in the order of their numerical designations.
[Amended 1-17-2006 by Ord. No. 2040-2006]
(3)
No member of the Zoning Board of Adjustment shall hold any elective office or position under the municipality. For the purpose of this section, membership on a municipal board or commission whose function is advisory in nature, the establishment of which is discretionary and not required by statute, shall not be considered the holding of municipal office.
(4)
No member of the Board of Adjustment shall be permitted to act on any matter in which he/she has, either directly or indirectly, any personal or financial interest.
(5)
A member may be removed by the governing body for cause after a public hearing, if he or she requests it. A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
(6)
The Zoning Board of Adjustment shall annually elect a chairperson and vice chairperson from its members and shall select a secretary who may or may not be a member of the Board or a municipal employee.
(7)
If the Board of Adjustment lacks a quorum because its regular or alternate members are prohibited by N.J.S.A. 40:55D-69 from acting on a matter due to the member's personal or financial interest, Class IV members of the Planning Board shall be called upon to serve, for that matter only, as temporary members of the Board of Adjustment. The Class IV members of the Planning Board shall be called upon to serve in order of seniority of continuous service to the Planning Board until there are the minimum number of members necessary to constitute a quorum to act upon the matter without any personal or financial interest. If a choice has to be made between Class IV members of equal seniority, the Chair of the Planning Board shall make the choice.
B.
Expenses and costs of Zoning Board.
(1)
The governing body shall make provisions in its budget and appropriate funds for the expenses of the Zoning Board of Adjustment.
(2)
The Zoning Board of Adjustment may employ or contract for and fix the compensation of legal counsel, other than the Municipal Attorney and experts and other staff services as it shall deem necessary, not exceeding, exclusive of gifts and grants, the amount appropriated by the Borough Council for its use.
C.
Annual report on variances heard by Zoning Board. The Board of Adjustment shall, at least once a year, review its decisions on applications and appeals for variances and prepare and adopt by resolution a report of its findings on zoning ordinance provisions which were the subject of variance requests and its recommendations for zoning ordinance amendment or revision, if any. The Board of Adjustment shall send copies of the report and resolution to the governing body and Planning Board.
D.
Powers and jurisdiction of Zoning Board of Adjustment.
(1)
The Zoning Board of Adjustment shall have the following powers:
(a)
Appeals. Hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, decision or refusal made by an Administrative Officer based on or made in the enforcement of the zoning ordinance; and
(b)
Interpretations. Hear and decide 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 Zoning or Official Map Ordinance in accordance with N.J.S.A. 40:55D-1 et seq.; and
(c)
Variances. Where:
[1]
By reason of exceptional narrowness, shallowness or shape of a specific piece of property or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property or by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any zoning regulation pursuant to N.J.S.A. 40:55D-62 et seq. 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; or
[2]
In an application or appeal relating to a specific piece of property the purposes of zoning set forth in N.J.S.A. 40:55D-2 would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment grant a variance to allow departure from regulations pursuant to N.J.S.A. 40:55D-62 et seq., provided, however, that no variance from those departures enumerated in Subsection D(1)(d) of this section shall be granted under this subsection; and provided further 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 has the power to review a request for a variance pursuant to N.J.S.A. 40:55D-60a; and
(d)
Use variances.
[1]
In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to N.J.S.A. 40:55D-62 et seq. to permit a use or principal structure in a district restricted against such use or principal structure, an expansion of a nonconforming use, deviation from a specification or standard pursuant to N.J.S.A. 40:55D-67 pertaining solely to a conditional use, an increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4, an increase in the permitted density as defined in N.J.S.A. 40:55D-4 except as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision, or a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by affirmative vote of at least five members.
[2]
If an application for development requests one or more variances but not a variance for a purpose enumerated in Subsection D(1)(d) of this section, the decision on the requested variance or variances shall be rendered under Subsection D(1)(c) of this section.
[3]
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 the purpose of the zone plan and zoning ordinance.
[4]
With respect to any airport safety zones delineated under the Air Safety and Zoning Act of 1983, P.L. 1983, c. 260 (N.J.S.A. 6:1-80 et seq.), no variance or other relief may be granted under the terms of this section permitting the creation or establishment of a use which would be prohibited under the standards promulgated pursuant to that act except upon issuance of a permit by the Commissioner of Transportation.
[5]
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.
(2)
The Zoning Board of Adjustment shall have such other powers, including the following:
(a)
To 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 basin or public area reserved pursuant to N.J.S.A. 40:55D-32.
(b)
To direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.
(c)
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 et seq. or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever the proposed development requires approval by the Board of Adjustment of a variance pursuant to N.J.S.A. 40:55D-70d. The developer may elect to submit a separate application requesting approval of the variance and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance shall be conditioned upon grant of all required subsequent approvals of a site plan or subdivision by the Board of Adjustment. No such subsequent approval shall be granted unless such approval can be granted without substantial impairment to the public good and without substantial impairment to the intent and purpose of the zone plan and zoning ordinance. The number of votes of Board members required to grant any such subsequent approval shall be as otherwise provided in this chapter for the approval in question and the special vote pursuant to N.J.S.A. 40:55D-70d shall not be required.
(d)
Whenever an application for development requests relief pursuant to Subsection D(2)(c) 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 Administrative Officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise required in N.J.S.A. 40:55D-1 et seq. Failure of the Board of Adjustment to act within the period prescribed shall constitute approval of the application and a certificate of the Administrative Officer as to the failure of the Board of Adjustment to act shall be issued on request of the applicant. 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. Whenever review or approval of the application by the County Planning Board is required by N.J.S.A. 40:27-6.3 in the case of a subdivision or N.J.S.A. 40:27-6.6 in the case of a site plan, the Zoning Board of Adjustment shall condition any approval that it grants upon timely receipt of a favorable report on the application by the County Planning Board or approval by the County Planning Board by its failure to report thereon within the required time.
E.
Appeals and applications to Zoning Board of Adjustment.
(1)
Appeals to the Zoning Board of Adjustment may be taken by any interested party affected by any decision of an official of Borough of Fair Lawn based on or made in the enforcement of the Zoning Ordinance or Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal with the official from whom the appeal is taken, with three copies of the notice given to the Secretary of the Board. The notice shall specify the grounds for the appeal. The official from whom the appeal is taken shall immediately transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
(2)
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.
(3)
The Board 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 have all powers of the municipal official from whom the appeal is taken.
(4)
An appeal to the Zoning Board of Adjustment shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the municipal official from whose action the appeal is taken certifies to the Board, 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/her opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by an order of the Superior Court upon notice to the municipal official from whom the appeal is taken and on due cause shown.
(5)
If, in the case of an appeal made pursuant to N.J.S.A. 40:55D-70, the Board of Adjustment determines there is an error in any order, requirement, decision or refusal made by the Administrative Officer pursuant to a report submitted by the Historic Preservation Commission or Planning Board in accordance with N.J.S.A. 40:55D-111, the Board of Adjustment shall include the reasons for its determination in the findings of its decision.
(6)
Any application for development submitted to the Board of Adjustment pursuant to lawful authority before the effective date of an ordinance pursuant to N.J.S.A. 40:55D-25(c) may be continued at the option of the applicant and the Board of Adjustment shall have every power which it possessed before the effective date of the ordinance in regard to the application.
F.
Time period.
(1)
The Board shall render a decision not later than 120 days after the date:
(a)
The appeal is taken from the decision of the municipal official; or
(b)
The submission of a complete application for development to the Board of Adjustment.
(2)
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.
(3)
Inquiries as to whether a proposed land use is permissible under the Zoning Ordinance or Official Zoning Map shall be submitted in writing to the Board of Adjustment, which shall issue a written response within 45 days after the next meeting following receipt of the request or within such additional time as may be consented to by the inquirer.
§ 125-58 Planning Board.
A.
Establishment of Planning Board.
(1)
The Borough of Fair Lawn Planning Board, created pursuant to N.J.S.A. 40:55D-23 et seq., shall consist of nine members of the following four classes:
(a)
Class I: the Mayor or Mayor's designee.
(b)
Class II: One of the officials of the municipality, other than a member of the governing body, to be appointed by the Mayor, provided that if there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Planning Board, as required by N.J.S.A. 40:56A-1, shall be deemed to be the Class II Planning Board member for the purposes of this chapter in the event that there is among the Class IV both a member of the Zoning Board of Adjustment and a member of the Board of Education.
(c)
Class III: a member of the Borough Council to be appointed by the Borough Council.
(d)
Class IV members: Other citizens of the municipality to be appointed by the Council. The members of Class IV shall hold no other municipal office, except that one member may be a member of the Board of Adjustment. One Class IV member may be a member of the Board of Education. If there is a Municipal Environmental Commission, the member of the Environmental Commission who is also a member of the Planning Board, as required by N.J.S.A. 40:56A-1, shall be a Class IV Planning Board member unless there are among Class IV members of the Planning Board both a member of the Zoning Board of Adjustment and a member of the Board of Education, in which case the member common to the Planning Board and Municipal Environmental Commission shall be deemed a Class II member of the Planning Board. For the purpose of this section, membership on a municipal Board or commission whose function is advisory in nature, the establishment of which is discretionary and not required by statute, shall not be considered the holding of municipal office.
(e)
Alternates. Two citizens of the Borough, designated as "alternates," shall be appointed by the Council and shall serve pursuant to N.J.S.A. 40:55D-23 et seq.
(2)
Terms.
(a)
The term of the member composing Class I shall correspond to his or her official tenure as Mayor. The terms of the members composing Class II and Class III shall be for one year or terminate at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the Environmental Commission. The term of a Class II or Class IV member who is also a member of the Environmental Commission shall be for three years or terminate at the completion of his or her term of office as a member of the Environmental Commission, whichever comes first. The term of a Class IV member who is also a member of the Board of Adjustment or Board of Education shall terminate whenever he/she is no longer a member of such other body or at the completion of his or her Class IV term, whichever occurs first. Thereafter, the Class IV term of each such member shall be four years. All terms shall run from January 1 of the year in which the appointment was made.
(b)
If a vacancy in any class shall occur otherwise than by expiration of the Planning Board term, it shall be filled by appointment, as above provided, for the unexpired term. No member of the Planning Board shall be permitted to act on any matter in which there is any personal or financial interest, either directly or indirectly. Any member other than a Class I member, after a public hearing, if requested, may be removed by the governing body for cause.
(c)
If the Planning Board lacks a quorum because any of its members are prohibited by N.J.S.A. 40:55D-23 or N.J.S.A. 40:55D-23.1 from acting on a matter due to the member's personal or financial interest, regular members of the Board of Adjustment shall be called upon to serve, for that matter only, as temporary members of the Planning Board in order of seniority of continuous service to the Board of Adjustment until there are the minimum number of members necessary to constitute a quorum to act upon the matter without any personal or financial interest. If a choice has to be made between regular members of equal seniority, the chair of the Board of Adjustment shall make the choice.
(d)
Nothing in this chapter shall, however, be construed to affect the terms of any present members of the Planning Board, all of whom shall continue in office until the completion of the terms for which they were appointed.
(3)
The Planning Board shall organize annually by selecting from among its Class IV members a Chairperson and a Vice Chairperson. The Board shall also select a Secretary who may or may not be a member of the Board or a municipal employee and create and fill such other offices as established by ordinance.
(4)
The governing body shall make provisions in its budget and appropriate funds for the expenses of the Planning Board.
(5)
The office of Planning Board Attorney is hereby created. The Planning Board may annually appoint to such office and fix compensation or rate of compensation of an attorney at law of New Jersey other than the Municipal or Board of Adjustment Attorney.
(6)
The Planning Board 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, however, shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
B.
Powers and jurisdiction of Planning Board. The Planning Board shall follow the provisions of N.J.S.A. 40:55D-25 and shall accordingly exercise its powers in regard to:
(1)
The Master Plan pursuant to N.J.S.A. 40:55D-28;
(2)
Subdivision control and site plan review pursuant to N.J.S.A. 40:55D-37 et seq.;
(3)
The Official Map pursuant to N.J.S.A. 40:55D-32 et seq.;
(4)
The capital improvements program pursuant to N.J.S.A. 40:55D-29 et seq.;
(5)
Variances and certain building permits in conjunction with subdivision, site plan and conditional use approval pursuant to N.J.S.A. 40:55D-60 et seq.
(6)
Participation in the preparation and review of programs or plans required by state or federal law or regulation;
(7)
Assemblage of data on a continuing basis as part of a continuous planning process; and
(8)
Performance of such other advisory duties as are assigned to it by ordinance or resolution of the Borough Council.
C.
Ancillary powers of the Planning Board.
(1)
Planning Board review in lieu of Board of Adjustment. Whenever the proposed development requires approval of a subdivision, site plan or conditional use, but not a variance pursuant to N.J.S.A. 40:55D-70d, the Planning Board shall have the power to grant to the same extent and subject to the same restrictions as the Board of Adjustment:
(a)
Variances pursuant to N.J.S.A. 40:55D-70c;
(b)
Direction pursuant to N.J.S.A. 40:55D-34 for issuance of a permit for a building or structure in the bed of a mapped street or public drainage way, flood control basin or public area reserved pursuant to N.J.S.A. 40:55D-32; and
(c)
Direction pursuant to N.J.S.A. 40:55D-36 for issuance of a permit for a building or structure not related to a street.
(2)
Whenever relief is requested pursuant to this section, notice of the hearing on the application for development shall include reference to the request for a variance or direction for issuance of a permit, as the case may be.
(3)
The developer may elect to submit a separate application requesting approval of the variance or direction of the issuance of a permit and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance or direction of the issuance of a permit shall be conditioned upon the grant of all required subsequent approvals by the Planning Board. No such subsequent approval shall be granted unless the approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance.
(4)
Time periods.
(a)
Whenever an application for approval of a subdivision plat, site plan or conditional use includes a request for relief pursuant to N.J.S.A. 40:55D-60, the Planning Board shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the Administrative Officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance or direction for issuance of a permit. The period for granting or denying any subsequent approval shall be as otherwise provided in N.J.S.A. 40:55D-70 et seq. Failure of the Planning Board to act within the period prescribed shall constitute approval of the application and a certificate of the Planning Board Chairman as to the failure of the Planning Board to act shall be issued on request of the applicant. 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.
(b)
Whenever review or approval of the application by the County Planning Board is required by N.J.S.A. 40:27-6.3, in the case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a site plan, the Planning Board shall condition any approval that it grants upon timely receipt of a favorable report on the application by the County Planning Board or approval by the County Planning Board by its failure to report thereon within the required time period.
D.
Referral powers of the Planning Board.
(1)
Prior to the adoption of a development regulation, revision or amendment thereto, the Planning Board shall make and transmit to the Borough Council, within 35 days after referral, a report including identification of any provisions in the proposed development regulation, revision or amendment which are inconsistent with the master plan and recommendations concerning these inconsistencies and any other matters as the Board deems appropriate. The Borough Council, when considering the adoption of a development regulation, revision or amendment thereto, shall review the report of the Planning Board and may disapprove or change any recommendation by a vote of a majority of its full authorized membership and shall record in its minutes the reasons for not following such recommendations. Failure of the Planning Board to transmit its report within the thirty-five-day period provided herein shall relieve the Borough Council from the requirements of this subsection in regard to the proposed development regulation, revision or amendment referred to the Planning Board. Nothing in this section shall be construed as diminishing the application of the provisions of N.J.S.A. 40:55D-32 to any official map or an amendment or revision thereto or of N.J.S.A. 40:55D-62 to any zoning ordinance or any amendment or revision thereto.
(2)
The Borough Council may by ordinance provide for the reference of any matter or class of matters to the Planning Board before final action thereon by a Borough body or Borough officer having final authority thereon except for any matter under the jurisdiction of the Board of Adjustment. Whenever the Planning Board shall have made a recommendation regarding a matter authorized by this act to another municipal body, such recommendation may be rejected only by a majority of the full authorized membership of such body.
§ 125-59 Provisions applicable to both Planning Board and Board of Adjustment.
A.
Meetings.
(1)
Meetings of both the Planning Board and Zoning Board of Adjustment shall be scheduled no less often than once a month and shall be held as scheduled unless canceled for lack of pending applications.
(2)
Special meetings may be held at the call of the Chair or at the request of any two Board members. The members of the respective Board and the public shall be given notice of such meeting in accordance with all applicable legal requirements.
(3)
No action shall be taken at any meeting without a quorum being present, said quorum to be the majority of the full authorized membership of the Board.
(4)
All actions shall be taken by majority vote of the members of the Board present at the meeting except as otherwise required by a provision of N.J.S.A. 40:55D-70. A member of the Board who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on a matter upon which the hearing was conducted, notwithstanding the absence from one or more of the meetings; provided, however, that a transcript or recording of all of the hearing from which he/she was absent exists and provided, further, that such Board member certifies in writing to the Board that he/she has read such transcript or listened to such recording.
(5)
All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meetings Act, the Laws of New Jersey 1975, c. 231.[1]
[1]
Editor's Note: See N.J.S.A. 10:4-6 et seq.
(6)
Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the municipal agency and of the persons appearing by attorney, the action taken by the municipal agency, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the Board Secretary. Any interested party shall have the right to compel production of the minutes for use or evidence in any legal proceedings concerning the subject matter of such minutes. Such interested party may be charged a reasonable fee for reproduction of the minutes for his or her use.
(7)
The preliminary agenda and the final agenda, of the Zoning Board of Adjustment and the Planning Board shall be placed on the Borough web site unless circumstances preclude same located athttp://www.fairlawn.org on a page designated for that purpose that can be accessed from the home page by a simple double mouse click. The final agenda shall be maintained in archival form on the web site in accordance with the policy therefor established from time to time by the Council.
(8)
The preliminary agenda and the final agenda, of the Zoning Board of Adjustment and the Planning Board shall also be placed on the Borough's cable television station on the same day as it is made available to members of the applicable Board unless circumstances preclude same and shall be run as a message of interest to the public with whatever appropriate explanatory text is prepared by either the applicable Board or the manager of such cable television services.
(9)
The approved minutes of the Planning Board and the Zoning Board of Adjustment shall be placed on the Borough Web site unless circumstances preclude same located at http://www.fairlawn.org on a page designated for the applicable Board with an additional hyperlinked text that can be accessed from such Board page by a simple double mouse click. The minutes shall remain accessible and available in such manner for a period of six months from the date of first posting and may, thereafter, be deleted.
[Amended 2-22-2005 by Ord. No. 2001-2005]
(10)
Meetings shall generally be conducted in accordance with Robert's Rules of Order.
(11)
Each Board shall require an applicant to execute and record as a covenant running with the land any terms and conditions of any site plan, subdivision, variance or other approval granted by such Board. The form of document to be recorded shall be subject to the review and approval of the Board Attorney, and evidence of the proper recordation of such document shall be presented to the Zoning Official of the Borough prior to the issuance of any building or any other permit.
[Amended 10-23-2007 by Ord. No. 2093-2007]
(12)
Nothing in this chapter shall precluded a recused member of the Board from testifying for or against an application, from filing an objection or from initiating a proceeding before the Board.
(13)
Where an objector or a proponent asks questions but does not testify, such persons need not be sworn.
(14)
The Board may reach its decision or determination as follows: by announcement at its regular meeting, with a written decision that follows; by written decision, read or summarized at the public hearing, provided that if summarized, a true copy is made a part of the record. Board members may state a decision by informal resolution, motion duly made and seconded, provided Board member state their rationale and a written decision is prepared by the member or Counsel.
(15)
The Code Enforcement Officer shall not issue any permit where such taxes, water charges or assessments are delinquent.
(16)
An applicant who utilizes a chart, graph, photograph or other illustrative device to show the Board of Adjustment or the Planning Board, something that is or will be, offered into evidence, shall have a duplicate that shall be displaced to any objectors or to proponents in the audience. No hearing may proceed in the absence of substantial compliance with this section. At least one survey shall be mounted on an easel facing the audience for their use on all substantial matters and on all use variance applications.
(17)
Every Resolution of Approval of the Planning Board and Zoning Board of Adjustment shall provide that any relief granted shall be further conditioned upon compliance with all other municipal, state and applicable federal laws and regulations.
(18)
On all matters before either Board deemed "significant" by majority vote of such Board, a copy of the underlying papers and, if printed, the minutes of the meetings shall be placed on file at the Fair Lawn Public Library in addition to any location at Borough Hall required by this Code. Such papers shall be marked "reserved" and subject to the library's then-existing use policies with respect to a reserve item, provided further that the papers shall remain in the library for public access.
B.
Public hearings.
(1)
The Planning Board or Zoning Board of Adjustment shall hold a hearing on each application for development or on the adoption, revision or amendment of the Master Plan. Each Board shall make the rules governing such hearings.
(2)
Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing during normal business hours in the office of the Board Secretary. The applicant may produce other documents, records or testimony at the hearing to substantiate, clarify or supplement the previously filed maps and documents.
(3)
Every application for development submitted to the Planning Board or to the Zoning Board of Adjustment shall be accompanied by proof that no taxes or assessments for local improvements are due or delinquent on the property which is the subject of such application.
(4)
The officer presiding at the hearings or such person as he/she may designate shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties; and the provisions of the County and Municipality Investigations Law, P.L. 1953, c. 38 (N.J.S.A. 2A:67A-1 et seq.), shall apply.
(5)
The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.
(5.1) | In any application for development before the Planning Board or Zoning Board of Adjustment wherein a hearing is required pursuant to N.J.S.A. 40:55D-10, an applicant or other interested party may, in the discretion of the Board, submit testimony in writing as follows: [Added 12-12-2000 by Ord. No. 1829-2000] |
(a)
The testimony shall be in writing and be sworn to under oath by the presenter thereof or may be submitted pursuant to certification in lieu of oath as set forth in Court Rule 1:4-4(b) which states, "I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment."
(b)
The written sworn testimony, which may include maps, documents, records or any other attachments deemed relevant to the submission, shall be submitted not less than two weeks prior to the hearing or meeting date on which the testimony is to be considered as follows:
[1]
Eighteen complete sets of documentation shall be submitted to the Planning Board relating to an application before that Board.
[2]
Eighteen complete sets of documentation shall be submitted to the Zoning Board of Adjustment relating to a commercial application before that Board.
[3]
Twelve complete sets of documentation shall be submitted to the Zoning Board of Adjustment relating to a residential application before that Board.
[4]
A computer disk copy shall be presented to the respective Board Secretary so that same may be posted on the Borough's Website. In the event that exhibits are submitted with the oral testimony, they shall be reduced in size as a .jpg or .bmp file.
[5]
One complete copy shall be placed on file at the reserve desk at the Maurice M. Pine Free Public Library.
(c)
Upon submission as set forth above, the testimony shall be deemed conditionally admitted into evidence before the respective Board. The author of the written testimony shall be present at the hearing or meeting at which the written testimony is to be considered and shall be subject to examination or cross-examination by all interested parties, including but not limited to the applicant or the applicant's representative, Board members, objectors or their representative, the municipal Public Advocate or Alternate Public Advocate, as the case may be, and such other interested parties who would be permitted to examine the witness had the testimony been submitted orally at the hearing or meeting. The author of the written testimony shall indicate before the respective Board that he/she is the author of the testimony and that the written testimony and any records, maps or documents submitted in conjunction therewith is the testimony of the witness and is incorporated verbatim and at length to the same extent as if he were orally testifying to same at the hearing or meeting.
(d)
Nothing contained herein shall prevent the author or presenter of the testimony from supplementing, revising or deleting any of the written testimony previously submitted subject to the respective Board's authority to exclude irrelevant, immaterial or unduly repetitious evidence as per N.J.S.A. 40:55D-10e.
(e)
Upon completion of examination, cross-examination or other discourse with the witness, the respective Board shall accept the written testimony into evidence, along with all other evidence elicited by way of supplement, revision or deletion as same may occur.
(f)
The procedure to accept written testimony as set forth above shall solely be in the sound discretion of the respective Board, and the Board reserves the right to not accept written testimony in lieu of oral testimony if the Board deems, in its sole discretion, that it is not in the public interest to do so, the application is unduly complex or any other reason exists to require oral testimony.
(6)
Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.
(7)
The municipal agency shall provide for the verbatim recording of the proceedings by either a stenographer or mechanical or electronic means at the applicant's expense.
(8)
The municipal agency shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing. The municipal agency shall provide the findings and conclusions through:
(a)
A resolution adopted at a meeting held within the time period provided in the act for action by the municipal agency on the application for development; or
(b)
A memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the municipal agency voted to grant or deny approval. Only the members of the municipal agency who voted for the action taken may vote on the memorializing resolution and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. An action pursuant to N.J.S.A. 40:55D-9 resulting from the failure of a motion to approve an application, shall be memorialized by resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution. The vote of any such resolution shall be deemed to be a memorialization of the action of the municipal agency and not to be an action of the municipal agency; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required by this section. If the municipal agency fails to adopt a resolution or memorializing resolution as herein above specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the municipal agency to reduce its findings and conclusions to writing within a stated time and the cost of the application, including attorney's fees, shall be assessed against the municipality.
(9)
A copy of the decision shall be mailed by the municipal agency within 10 days of the date of decision to the applicant or if represented then to his or her attorney, without separate charge and to all who request a copy of the decision for a reasonable fee. A copy of the decision shall also be filed by the municipal agency in the office of the Board Secretary. The Board Secretary shall make a copy of such filed decision available to any interested party for a reasonable fee and available for public inspection at his or her office during reasonable hours. Copies of the decision shall be sent to the Municipal Clerk, Construction Official, Zoning Officer, Engineer and Board Attorney.
(10)
A brief notice of the decision shall be published in the official newspaper of the municipality. Such publication shall be arranged by the applicant unless a particular municipal officer is so designated by ordinance, provided that nothing contained in this chapter shall be construed as preventing the applicant from arranging such publication if he/she so desires. The municipality may make a reasonable charge for its publication. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision, whether arranged by the municipality or the applicant.
§ 125-60 Notice of applications.
A.
Public notice of a hearing shall be given by the applicant for the following applications for development:
(1)
Any request for a variance.
(2)
Any request for conditional use approval.
(3)
Any request for issuance of a permit to build within the bed of a mapped street or public drainageway or on a lot not abutting a street.
(4)
Any request for approval of a site plan and/or subdivision except minor site plans or minor subdivisions.
(5)
Any request for approval of a planned development.
B.
The Secretary of the Planning Board or Zoning Board of Adjustment, as the case may be, shall notify the applicant at least two weeks prior to the public hearing at which the application will be discussed. Notice of a hearing requiring public notice shall be given by the applicant at least 10 days prior to the date of the hearing in the following manner:
(1)
By publication in the official newspaper of the Borough.
(2)
To all owners of real property as shown on the current tax duplicate, located in the state and within 200 feet in all directions of the property which is the subject of such hearing, provided that this requirement shall be deemed satisfied by notice to the condominium association, in the case of any unit owner whose unit has a unit above or below it or horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. Notice shall be given by serving a copy thereof on the property owner as shown on said current tax duplicate or his or her agent in charge of the property or mailing a copy thereof by certified mail to the property owner at his or her address as shown on said current tax duplicate.
(3)
Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation. Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the property which is the subject of the hearing, may be made in the same manner as to a corporation without further notice to unit owners, co-owners or homeowners on account of such common elements or areas.
(4)
To the Clerk of any adjoining municipality or municipalities when the property involved is located within 200 feet of said adjoining municipality or municipalities. Notice shall be given by personal service or certified mail.
(5)
To the Bergen County Planning Board when the application for development involves property adjacent to an existing county road or proposed road as shown on the County Official Map or the County Master Plan, adjoining other county land, impacts a county drainage structure or situated within 200 feet of a municipal boundary. Notice shall be given by personal service or certified mail.
(6)
To the Commissioner of Transportation of the State of New Jersey when the property abuts a state highway or impacts a New Jersey Department of Transportation drainage or other structure. Notice shall be given by personal service or certified mail.
(7)
To the Director of the Office of State Planning when the hearing involves an application for the development of property which exceeds 150 acres or 500 dwelling units, in which case the notice shall include a copy of any maps or documents required to be on file with the Administrative Officer. Notice shall be given by personal service or certified mail.
(8)
To every public utility, cable television company and local utility who is interested in receiving notice and who has registered with the municipality in accordance with N.J.S.A. 40:55D-12.1 et seq.
C.
Pursuant to the provisions of N.J.S.A. 40:55D:12c, the Construction Official of the Borough shall, within seven days after receipt of a request therefor and upon receipt of payment of a fee of $10, make and certify a list from the current tax duplicate of names and addresses of owners to whom the applicant is required to give notice to pursuant § 125-60B.
[Added 3-27-2001 by Ord. No. 1849-2001][1]
[1]
Editor’s Note: Former § 125-60.1, Public Advocate, as amended, and which immediately followed this section, was repealed 11-28-2017 by Ord. No. 2445-2017.
