South Hackensack City Zoning Code
ARTICLE V
Board of Adjustment
§ 208-18 Board established; members; powers.
[Amended 12-19-1996 by Ord. No. 96-14]
A.
Establishment; terms.
(1)
A Board of Adjustment is hereby established consisting of seven members and two alternate members. A member may, after public hearing if he requests it, be removed by the governing body for cause. A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
(2)
Terms.
(a)
The terms of the members shall be as follows:
[1]
Two regular members shall be appointed for four-year terms effective January 1, 1987.
[2]
One regular member shall be appointed effective January 1, 1987, for a one-year term.
[3]
One regular member shall be appointed January 1, 1988, for a four-year term.
[4]
Two regular members shall be appointed effective January 1, 1989, for four-year terms.
[5]
Two regular members shall be appointed effective January 1, 1989, for one-year terms.
[6]
Two regular members shall be appointed effective January 1, 1990, for four-year terms.
(b)
Thereafter the term of each regular member shall be four years.
B.
Chairman, Vice Chairman and Secretary; duties and compensation.
[Amended 5-10-2012 by Ord. No. 2012-06]
(1)
The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and select a Secretary who may or may not be a member of the Board of Adjustment or a municipal employee. The Chairman shall conduct all public meetings and shall serve without compensation. The Vice Chairman shall assume the duties of the Chairman in his or her absence and shall also serve without compensation. The Secretary shall maintain all notes, records and minutes of all meetings, prepare all meeting agendas, receive and assemble all development applications, correspond and communicate with all applicants and Board members, and prepare reports and other correspondence or materials at the direction of the Board. All shall serve until December 31 of the year of their appointment or until such time that their terms shall expire as a matter of law and/or their successors are appointed.
(2)
The Board of Adjustment Secretary shall receive compensation as set by the Township Committee in the Salary Ordinance.
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. The vacancy shall be filled by appointment by the Mayor, subject to confirmation by the Township Committee.
F.
The term of office of each of the alternate members shall be for two years, except that the initial terms of such alternate members shall be one year and two years, as designated by the appointing authority. Alternate members shall be designated at the time of appointment by the authority appointing them as "Alternate No. 1" and "Alternate No. 2." Alternate members shall be appointed by the same appointing authority as regular members.
G.
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 No. 1 shall vote.
§ 208-19 Expenses and costs.
The Board of Adjustment may employ, or contract for, and fix the compensation of legal counsel, experts and other staff and services as it shall deem necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the Township Committee for its use.
§ 208-20 Appeals and applications to Board of Adjustment.
A.
Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of this chapter or the Municipal Map. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken, specifying the grounds of such appeal. The officer 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. In addition thereto, 13 copies of said notice shall be filed with the Secretary of the Board.
B.
A developer may file 13 copies of an application for development with the Board of Adjustment for action under any of its powers without prior application to an administrative officer.
C.
At the time of filing the appeal or application, but in no event less than 14 days prior to the date set for hearing, the applicant shall also file all plot plans, maps or other papers required by virtue of the provisions of the ordinances of the Township of South Hackensack. The applicant shall obtain all necessary forms from the Secretary of the Board.
[Amended 9-9-2004 by Ord. No. 2004-13]
§ 208-21 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 an administrative officer or the submission of a complete application for development to the Board of Adjustment pursuant to the Municipal Land Use Act.[1]
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
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.
§ 208-22 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. An appeal 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 was taken certifies to the Board, after the notice of appeal shall have been filed with him or her, that by reason of facts stated in the certificate a stay would, in his or 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 officer from whom the appeal is taken and on due cause shown.
§ 208-23 Powers and duties.
A.
The Board of Adjustment shall have the power to:
(1)
Decide appeals where it is alleged by an applicant that there is error in any order, requirement, decision or refusal by an administrative officer based on or made in the enforcement of this chapter.
(2)
Decide requests for interpretation of the Zoning Map or this chapter or for decisions upon other special questions upon which the Board is authorized to pass by any zoning or official map ordinance in accordance with the Municipal Land Use Law.
(3)
Where, 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 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; where in an application or appeal relating to a specific piece of property the purposes of the Municipal Land Use Law and this chapter would be advanced by a deviation from the requirements of this chapter 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 A(4) 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 power to review a request for a variance pursuant to N.J.S.A. 40:55D-60.
(4)
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. and/or this chapter 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. A variance under this subsection shall be granted only by affirmative vote of at least five members.
(5)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a building or structure in the bed of a map street or public drainageway, flood control basin or public area reserved pursuant to N.J.S.A. 40:55D-32.
(6)
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.
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 this chapter.
C.
It is the intent of this chapter to confer upon the Zoning Board of Adjustment all of the powers that may be lawfully conferred upon such Board by the statutory and decisional law of the State of New Jersey.
D.
Any variance granted by the Board of Adjustment, except use variances, bulk variances granted pursuant to site plan approval and any other variances which have greater limitations pursuant to the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et.seq., for the erection or alteration of any structure shall expire by limitation unless such construction or alteration shall have been commenced within one year of the date of publication of the notice of judgment or determination by the Board of Adjustment. The running of said period of limitation shall be stayed from the date of filing an appeal from the decision of the Zoning Board of Adjustment to the Township Committee or to a court of competent jurisdiction until the final determination in any manner of such appeal.
[Added 12-15-2005 by Ord. No. 2005-14]
§ 208-24 Referral to other agencies.
The Board of Adjustment shall refer any applications submitted pursuant to N.J.S.A. 40:55D-76 to any appropriate person or agency for its report, provided that such reference shall not extend the period of time within which the Board of Adjustment shall act.
§ 208-25 Appeals to Township Committee.
A.
Any interested party may appeal to the Township Committee any final decision of the Board of Adjustment approving an application for development pursuant to N.J.S.A. 40:55D-70d. The appeal must be made within 10 days of the date of the publication of the final decision as set forth in § 192-34 of the Code of the Township of South Hackensack. The appeal shall be made by serving the Township Clerk in person or by certified mail, with a notice of the appeal, specifying the grounds thereof and the name and address of the appellant and name and address of his or her attorney, if represented. Such appeal shall be decided by the Township Committee only upon the record established below.
B.
Notice of the meeting to review the record below shall be given by the Township Committee by personal service or certified mail to the appellant and to those entitled to notice of the decision and to the Board of Adjustment 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.
C.
The appellant shall, within five days of date of service of the notice of appeal, arrange for a transcript for use by the Township Committee and pay a deposit as provided in Chapter 108, Fees, for the estimated cost of such transcript, whichever is less, or within 35 days of service of the notice of appeal submit a transcript as otherwise arranged by the Township Clerk. Failure to comply with this section will be considered a failure to prosecute, and the appeal will be dismissed. The Township Committee shall conclude a review of the record and render a decision within 95 days from the date of publication of the notice of the decision below, unless the applicant consents, in writing, to an extension of such period. Failure of the governing body to render a decision shall constitute a decision affirming the action below.
[Amended 12-19-1996 by Ord. No. 96-14]
D.
The Township Committee may reverse, remand or affirm, with or without the imposition of conditions, the final decision of the Board of Adjustment.
E.
The affirmative vote of a majority of the full authorized membership of the Township Committee shall be necessary to reverse, remand or affirm, with or without conditions, any final action of the Board of Adjustment.
F.
An appeal 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 from whose action the appeal is taken certifies to the Township Committee, after the notice of appeal shall have been filed with the Board of Adjustment, that by reason 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.
G.
The Township Committee shall mail a copy of the decision to the appellant or, if represented, to his or her 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 of South Hackensack; such publication shall be arranged by the Township Clerk. The appellant shall pay publication charges.
§ 208-26 Special exceptions.
Said Board of Adjustment may, in appropriate cases, make special exceptions to the terms of this chapter, in harmony with its general purpose and intent, provided that no special exception shall be made in respect to any premises or structure or the use thereof unless the same abuts and is not more than 150 feet from the boundary of any established district where such structure or use is authorized by the terms of this chapter.
§ 208-27 Certification of tax payment.
[Added 1-21-1994; amended 2-17-1994]
Except as to applications relating to owner occupied one- and two-family dwellings, no application under any article of this chapter or any other application as may be permitted or required by law shall be either deemed complete or entertained unless and until the applicant has filed with that application written certification of the Collector that all taxes, assessments and other charges levied by the Township against the premises which are the subject of the application are currently paid in full.