West New York City Zoning Code
ARTICLE IX
Zoning Board of Adjustment
§ 414-53 Continuation of existing Board; organization; meetings; records and reports.
A.
The Board of Adjustment heretofore established pursuant to the provisions of Chapter 291 of the Laws of New Jersey 1975 shall continue as the Board of Adjustment for the Town of West New York with all the powers prescribed by law and as herein described.
B.
The Board of Adjustment shall consist of seven members and two alternates. No member or alternate shall hold any elective office or position in the town. The terms of the members first appointed under this article 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 such member shall be four years. The Board of Commissioners shall determine the compensation that the members of the Board shall receive.
[Amended 11-20-2000 by Ord. No. 22/00]
C.
The Board may, within the limit of appropriations made available to it by the Board of Commissioners, employ a Secretary, legal counsel and such other personnel as may be required for the conduct of its business.
D.
The Board of Adjustment shall adopt such rules and regulations as it may deem necessary to interpret and carry into effect the provisions of this chapter. The Board shall elect a Chairman from among its members, and meetings of the Board shall be held at the call of the Chairman. The Board shall also select a Vice Chairman, who, in the absence of the Chairman, shall act as Chairman.
E.
Meetings of the Board of Adjustment shall be held at the call of the Chairman and at such other times as the Board may determine. The Chairman or the Acting Chairman shall have power to issue subpoenas for the attendance of witnesses and the production of records and may administer oaths and take testimony. All regular meetings of the Board of Adjustment shall be open to the public.
F.
The Board of Adjustment shall keep minutes of its proceedings, showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall immediately be filed in the office of the Board and shall be a public record. A quorum shall consist of four members of the Board and the concurring votes of four members of the Board shall be required to effect any action of the Board.
G.
The Board of Adjustment shall report to the Board of Commissioners annually, summarizing all appeals and applications made to it since its last previous report and summarizing its decisions on such appeals and applications. At the same time that each such report is filed, copies thereof shall also be filed with the Mayor, the Planning Board, the Construction Official and the Town Attorney.
H.
At intervals of not greater than 12 months, the Town Attorney shall examine the records of the Board of Adjustment and shall submit to said Board a written summary of his observations thereon, including any recommendations that he may deem advisable in order to assure full conformity with the requirements and limitations of this chapter pertaining to the jurisdiction and functions of said Board. Copies of such summary and recommendations shall be filed with the Board of Commissioners, the Planning Board and the Construction Official.
§ 414-54 Powers and duties.
A.
The Board of Adjustment shall have all the powers and duties prescribed by law (Chapter 291 of the Laws of New Jersey 1975[1]) and by this chapter, which are more particularly specified as follows, provided that none of the following provisions shall be deemed to limit any power of the said Board that is conferred by law:
(1)
Conditional uses, interpretations and special questions. The Board shall have the power to:
(a)
Hear and decide requests for use and hardship variances.
(b)
Hear and decide requests for interpretation of the Zoning Map.
(c)
Render decisions upon other special questions upon which such Board is authorized to pass.
(2)
Hardship variances. 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 this chapter would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, the Board may authorize, upon an appeal relative 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.
(3)
Use variances. The Board after making findings may recommend in particular cases and for special reasons to the Board of Commissioners of the Town of West New York the granting of a variance to allow a structure or use in a district restricted against such structure or use.
(4)
Appeals. The Board shall have the power to 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 chapter.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
B.
The Board of Adjustment shall also have the following specific additional powers:
(1)
To refer applications before the Board to any appropriate person, agency, board, commission, committee, authority or other instrumentality for review and recommendations.
(2)
To direct the issuance of a building permit for those purposes enumerated in N.J.S.A. 40:55D-34, 40:55D-35 and 40:55D-36 upon such terms and conditions as contained therein and which will permit and encourage the health, morals, safety and general welfare of the public.
(3)
Where an original application requires a use variance or variances on more than one lot for minimum lot area requirements on a major or minor subdivision application and this chapter requires the applicant to also obtain subdivision, site plan and/or conditional use approval, the Board of Adjustment may grant said subdivision, site plan and/or conditional use approval in conjunction with said variance, after referring the application to the Planning Board for review by the appropriate administrative agencies normally involved with said reviews pursuant to this chapter and reviewing the Planning Board's review and recommendation report.
(4)
To review, recommend, report on or decide matters at formal or informal public meetings, referred to the Board by other administrative agencies, as permitted or required by other ordinances or inherent powers of the Town of West New York.
§ 414-55 Authorization of temporary uses.
The Board of Adjustment may, after due notice and public hearing, permit the temporary occupancy and use of a structure in any district for a purpose that does not conform with the regulations for that district. Such occupancy and use shall be subject to any reasonable conditions and safeguards which the Board may impose to minimize any injurious effect upon the neighborhood or to protect contiguous property. Such approval and permit based thereon shall not be valid for more than 12 months, but may be renewed not more than once for another period of 12 months.
§ 414-56 Authorization for change from one nonconforming use to another.
The Board of Adjustment may, after due notice and public hearing, permit a change from one nonconforming use to another, provided that the new nonconforming use shall be of substantially the same character and shall have the same or less nuisance characteristics as the previous nonconforming use and shall conform to all other provisions of this chapter for nonconforming uses.
§ 414-57 Imposition of conditions or restrictions on approval of applications.
A.
Action by Board of Adjustment; conditions of grant. In any case where the Board of Adjustment is empowered to approve a conditional use or authorize a variance, said Board may impose such conditions or restrictions as are deemed necessary in the specific case in order to minimize the effects of the use or variance upon other property in the neighborhood, assure a harmonious arrangement of uses or implement the intent and purpose of this chapter. Any such conditions or restrictions shall become a part of any building permit or certificate of occupancy thereafter issued for the premises involved. Special conditions or limitations may include but are not limited to any of the following:
(1)
The location of principal and accessory buildings.
(2)
The limitation of signs or advertising devices, including number, size, location and type of illumination.
(3)
The limitation of amount, location, intensity and direction of exterior illumination.
(4)
The amount, location and improvement of off-street parking and loading space.
(5)
The control of the number and design of the means of access and circulation to and within the premises.
(6)
The type, location and design of drainage and drainage structures.
(7)
The grading and the location and type of retaining walls or structures.
(8)
Landscaping, screening, fencing and walls, including the location and type of planting and fencing required for screening purposes.
(9)
Hours of operation.
(10)
Structural changes, including the installation of storefronts.
(11)
Control or elimination of smoke, dust, gas, noise, vibration, odor or fire or health hazards, or any other deleterious effects of a land use on the environment.
(12)
Other conditions found by the Board to be necessary, which may include traffic studies, environmental impact or other technical studies by qualified professionals at the expense of the applicant.
B.
Compliance with conditions imposed upon granting application. Whenever the Board of Adjustment, in passing upon an application, imposes conditions upon the granting of said application, unless a specific time is fixed by the Board of Adjustment within which time the conditions must be complied with, then such conditions must be complied with within 60 days after the date of the granting of said application. If such conditions are not so complied with, then the granting of said application shall become null and void, and all records of said application shall be endorsed to indicate that said application was denied by the Board of Adjustment. After said application becomes null and void, it shall be the duty of the Construction Official to examine the premises in question to ascertain whether there may be thereon any violations of this chapter. If such violation exists, the Construction Official shall cause a summons to be issued.
§ 414-58 Procedure for exercise of powers and duties.
A.
The powers and duties of the Board of Adjustment shall be exercised in accordance with the following procedure:
(1)
A public hearing shall be held by said Board on every appeal and application made to it. Due notice of such hearing and of the substance of the appeal or application shall be given by the Board to the appellant. Upon written request of the appellant, the town shall, within seven days, make and certify a list of names and addresses of property owners located within 200 feet of the property to be affected by said application to whom the applicant is required to give notice at least 10 days prior to the time of hearing. A fee of $10 is to be paid for this certified list.
(2)
At least five days before the date of any public hearing, the Construction Official shall transmit to the Secretary of the Planning Board a copy of any appeal or application, together with a copy of the notice of such hearing. The Planning Board may submit to the Board of Adjustment an advisory opinion on said appeal or application at any time prior to the rendering of a decision.
(3)
(4)
Unless work is commenced and diligently prosecuted within six months of the date of the granting of a variance or conditional permit, such variance or conditional permit shall become null and void.
(5)
Each appeal and application to the Board of Adjustment shall be made by the owner of the property affected, in writing, on forms prescribed by the Board and shall be accompanied by a fee of $75.
(6)
Every decision of the Board of Adjustment shall be recorded in accordance with standard forms adopted by the Board and shall set forth the circumstances of the case and shall contain a record of the findings on which the decision is based. Every decision of the Board of Adjustment shall be by resolution, and each such resolution shall be filed with the Town Clerk by case number, together with all documents pertaining thereto.
B.
All provisions of this chapter relating to the Board of Adjustment shall be strictly construed. The Board, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter and in strict compliance with all limitations contained therein.
§ 414-59 Appeals.
A.
Appeals to the Board of Adjustment may be taken by any person aggrieved or by his agent or by an officer, board, department or bureau of the Town of West New York affected by any decision of the Construction Official. Such appeal shall be taken within 65 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 forthwith transmit to the Board of Adjustment all the papers constituting the record upon which the appeal is taken.
B.
An application for a use permit or for any other permit for which approval by the Board of Adjustment is required under the terms of this chapter may be made by the owner of the property involved, or by a lessee thereof, or by a person, firm or corporation under bona fide contract to purchase the same.
C.
All appeals shall be in writing on forms prescribed by the Board of Adjustment. Every appeal shall refer to the specific provision of the chapter that is involved and shall fully set forth the circumstances of the case and the interpretation that is claimed on an allegation of error, the variance that is applied for and the grounds on which it is claimed that the same should be granted or the conditional use for which the permit is sought or any other such information that the rules of the Board may require.
D.
An appeal stays all proceedings in furtherance of the action in respect of which the decision appealed from was made, unless the officer from whose action 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 the facts stated in the certificate a stay, in his opinion, would cause imminent peril to life and 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 on application upon notice to the officer from whom the appeal is taken and on due cause shown.
E.
F.
Said applicant or appellant shall, at least 10 days prior to the time appointed for said hearing, give notice to all owners of property situate within or without the Town of West New York and within 200 feet of the property to be affected by said appeal. Such notice shall be given either by registered mail or by being served personally at their usual place of abode if said owners are the occupants of the property affected by such appeal. Whenever said owners are nonresidents of the Town of West New York, such notice may be given by sending written notice thereof by registered mail to the last known address of the property owner or owners, as shown by the most recent tax lists of the town. Where the owner is a partnership, service upon any partner as above provided shall be sufficient, and where owners are corporations, service upon any officers, as above provided, shall be sufficient. The appellant shall by affidavit present satisfactory proof to the Board of Adjustment at the time of the hearing that said notices have been duly served as aforesaid. Upon the hearing any party may appear in person, by agent or by attorney.
§ 414-60 Expiration of Board authorizations.
Unless otherwise specified by the Board of Adjustment, a decision on any appeal or request for a variance or use permit shall expire without notice if the applicant fails to obtain any necessary permit from the Construction Official or to comply with the conditions of said authorized permit within one year from the date of authorization thereof. However, an extension may be granted by the Board of Adjustment because of the occurrence of conditions unforeseen at the time of the original action. Any application for extension shall be subject to the same procedure as specified in this article for the original issuance of the variance or use permit.
§ 414-61 Referral of applications to Planning Board.
The Board of Adjustment shall transmit to the Planning Board a copy of every appeal or application made to the Board and shall also notify the Planning Board of the date of the hearing thereon. If prior to the hearing the Planning Board submits to the Board of Adjustment a recommendation that an application for a use permit be denied or that specified conditions be prescribed in connection with a particular variance, the Board of Adjustment shall not act contrary to such recommendation except by majority vote.
§ 414-62 Time limit for decisions upon appeals.
A.
Whenever an appeal shall be taken to the Board of Adjustment pursuant to this article, said Board shall render a decision not later than 120 days after the date:
B.
Upon failure to do so, such appeal at the expiration of such time shall be deemed to be decided adversely to the appellant as though the Board had rendered a decision to that effect.
§ 414-63 Rehearings.
Whenever the Board of Adjustment, after hearing all evidence presented upon an application or appeal under the provisions of this article, denies the same or refuses to recommend to the Board of Commissioners, said Board shall refuse to hold further hearings on said or substantially similar application or appeal by the same applicant, successor or assignee for a period of six months. If the Board determines from the information supplied with a request for a rehearing that changed conditions have occurred relating to the promotion of the public health, safety, convenience, comfort, prosperity and general welfare, the appeal or application may be considered within said period.