Hillside City Zoning Code
§ 188-48
Zoning Board of Adjustment.
[Added 5-31-1977 by Ord. No. G-112-77]
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 Township of Hillside appointed by the Mayor to serve for terms of four years from January 1 of the year of their appointment.
B.
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 article shall, however, be construed to effect 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.
C.
No member of the Zoning Board of Adjustment may hold any elective office or position under the municipality.
D.
A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
E.
Alternative members of the Zoning Board.
[Added 9-19-1978 by Ord. No. G-130-78; amended 2-19-1980 by Ord. No. G-177-80]
(1)
The Mayor may appoint two alternate members of the Zoning Board who are residents of the Township of Hillside. Alternate members shall be designed by the Mayor at the time of appointment as "Alternative No. 1" and "Alternative No. 2." The term of each alternative member shall be for two years.
(2)
Alternative 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 alternative member. In the event that a choice must be made as to which alternative member is to vote, Alternative No. 1 shall vote.
F.
Officers. The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary, who may be either a Board member or another municipal employee.
G.
Board of Adjustment Attorney. There is hereby created the office of Attorney to the Zoning Board of Adjustment. The Zoning Board of Adjustment may annually appoint, fix the compensation of or agree upon the rate of compensation of the Zoning Board of Adjustment Attorney, who shall be an attorney other than the Municipal Attorney.
H.
Experts and staff. 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.
I.
Rules and regulations. The Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this article. 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.
J.
Powers to the Zoning Board of Adjustment.
(1)
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 article.
(2)
It is further the intent of this article 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 article, or any term, clause, sentence or word hereof, and the Zoning Map, in accordance with the general rules of construction, applicable to legislative enactments.
(3)
The Board may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances from the terms of this article 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 article 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 said Chapter 291 of the Laws of 1975[1] 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.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
K.
Appeals and applications.
[Amended 2-19-1980 by Ord. No. G-177-80]
(1)
Appeals to the Board of Adjustment may be taken by any person aggrieved or by an officer, department, board or bureau of the municipality affected by any decision of the administrative officer. Each appeal shall be taken within the 20 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.
(2)
Applications addressed to the original jurisdiction of the Board of Adjustment without prior application to any 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 article 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.
(3)
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 case, 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.
L.
Power to reverse or modify decisions. In exercising the above-mentioned power, the Board of Adjustment may, in conformity with the provisions of Chapter 291 of the Laws of 1975 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.
M.
Expiration of variance. Any variance from the terms of this article 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 nine months 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.
N.
Powers granted by law.
(1)
The Board of Adjustment shall have such powers as are granted by law to:
(a)
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 this article.
(b)
Hear and decide requests for interpretation of the map or this article or for decisions upon other special questions upon which such Board is authorized by this article to pass.
(c)
Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic shape of a specific piece of property, or by reason of exceptional situation or conditions, or by reason of other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation in this article 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, including a variance for a conditional use; 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 the Subsection 47a of the Municipal Land Use Law of 1975, Ch. 291, P.L. 1975.[2]
[2]
Editor's Note: See N.J.S.A. 40:55D-60a.
(d)
In particular cases and for special reasons grant a variance to allow departure from regulations pursuant to § 188-41, including, but not limited to, allowing a structure or use in a district restricted against such structure or use, but only by affirmative vote of a least five members of the Board.
(2)
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 this article. Any application under any subsection of 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.
O.
Additional powers.
[Amended 2-19-1980 by Ord. No. G-177-80]
(1)
The Zoning Board of Adjustment shall, in addition to the powers specified in this article, have power given by law to:
(a)
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 on the Official Map.
(b)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.
(2)
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 the statute 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-70. The developer may elect to submit a separate application requesting approval of the variance and a subsequent application for any required 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 by the Board of Adjustment. No such subsequent approval shall be granted unless such 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 this article. The number of votes of Board members required to grant any such subsequent approval shall be as otherwise provided in this article for the approval in question, and the special vote pursuant to the aforesaid N.J.S.A. 40:55D-70 shall not be required.
P.
Time for decision. The Board of Adjustment shall render its decision not later than 120 days after the date an appeal is taken from the decision of the Construction Official or the submission of a complete application for development to the Board pursuant to the provisions of N.J.S.A 40:55D-70b. 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 provided by law. Failure of the Board of Adjustment to act within the time prescribed shall constitute approval of the application, and a certificate of the Construction Official 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.
[Amended 2-19-1980 by Ord. No. G-177-80]
Q.
Appeals to the Township Committee from Board of Adjustment.
[Amended 2-19-1980 by Ord. No. G-177-80]
(1)
When allowed. Any interested party desiring to may appeal the decision of the Board of Adjustment granting a use variance pursuant to this article and N.J.S.A. 40:55-70d.
(2)
All other final decisions of the Board of Adjustment must be appealed to the Superior Court of New Jersey or other court of competent jurisdiction within the time required by law.
R.
Time period for appeal. Any such appeal to the Township Committee shall be made within 10 days of the date of publication of such final decision by serving the Township Clerk in person or by certified mail with a notice of appeal specifying the grounds thereof and the name and address of the appellant and name and address of his attorney, if represented. Such appeal shall be decided by the Township Committee only upon the record established before the Board of Adjustment.
S.
Notice of meeting to consider appeal. Notice of the meeting at which the appeal is to be considered on the record below shall be given by the Township Committee by personal service or certified mail to the appellant or the attorney for appellant, if represented, to those entitled to notice of a decision pursuant to this article and to the Board from which the appeal is taken at least 10 days prior to the date of the meeting. The parties may submit oral and written argument on the record at such meeting, and the Township Committee shall provide for verbatim recording and transcripts of such meeting.
T.
Time period for decision. The appellant shall, within five days of service of the notice of the appeal pursuant to § 188-48K hereof, arrange for a transcript pursuant to § 188-54 for use by the governing body and pay a deposit of $50 or the estimated cost of such transcription, whichever is less, or within 35 days of service of the notice of appeal submit a transcript as otherwise arranged to the Township Clerk; otherwise, the appeal may be dismissed for failure to prosecute. The Township Committee shall conclude a review of the record below not later than 95 days from the date of publication of notice of the decision below pursuant to § 188-48S, unless the applicant consents, in writing, to an extension of such period. Failure of the Township Committee to hold a hearing and conclude a review of the record below and to render a decision within such specified period shall constitute a decision affirming the action of the Board.
[Amended 2-19-1980 by Ord. No. G-177-80]
U.
Decision of Township Committee. The governing body may reverse, remand or affirm, wholly or in part, or may modify the final decision of the Board of Adjustment. The affirmative vote of a majority of the full authorized membership of the Township Committee shall be necessary to reverse, remand or modify any final action of the Board of Adjustment.
V.
Stay of proceedings. An appeal of a grant of a use variance to the Township Committee shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the Board of Adjustment certifies to the Township Committee, after the notice of appeal shall have been filed with such Board, that by reasons of facts stated in the certificate a stay would, in its 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 on application upon notice to the Board of Adjustment and on good cause shown.
W.
Publication of decision. The Township Committee shall mail a copy of the decision to the appellant or, if represented, then to his attorney without separate charge, and for a reasonable charge to any interested party who has requested it, not later than 10 days after the date of the decision. A brief notice of the decision shall be published in the official newspaper of the Township. Such publication shall be arranged by the Township Clerk, provided that nothing contained herein shall be construed as preventing the applicant from arranging such publication if he so desires. The Township Committee shall charge the applicant the cost for its publication. The period of time in which an appeal to a court of competent jurisdiction may be made shall run from the first publication, whether arranged by the Township or the applicant.
X.
Court review. Nothing in this article shall be construed to restrict the right of any party to obtain a review by any court of competent jurisdiction according to law.
Y.
Appeals from the Planning Board. All final decisions of the Planning Board must be appealed to the Superior Court of New Jersey or other court of competent jurisdiction.
Z.
Appeals by a public utility. Nothing set forth in § 188-42 shall prevent a public utility pursuant to N.J.S.A. 40:55D-19 from appealing directly to the Board of Regulatory Commissioners of the State of New Jersey from an action of decision by the Board of Adjustment involving an application for a use variance without an appeal first to the Township Committee as permitted by this article. In such case the appeal to the Regulatory Commissioners shall be taken within 35 days after the action or decision of the Board of Adjustment being appealed.
[Amended 10-21-2003]