A.
A Zoning Board of Adjustment is hereby established pursuant to N.J.S.A.
40:55D-69 et seq., consisting of seven residents of the Borough of
Ho-Ho-Kus, each to be appointed by the Mayor with the approval of
the Borough Council, to serve for terms of four years from January
1 of the year of their appointment. The terms of the members first
appointed shall be so determined that, to the greatest practicable
extent, the expiration of such terms shall be distributed evenly over
the first four years after their appointment, provided that the initial
term of no member shall exceed four years. Thereafter, the term of
each member shall be for four years. Nothing in this chapter shall,
however, be construed to affect the terms of any present members of
the Zoning Board of Adjustment, all of whom shall continue in office
until the completion of the terms for which they were appointed.
B.
No member of the Zoning Board of Adjustment may hold any elective
office or position under the municipality.
C.
A vacancy occurring otherwise than by expiration of term shall be
filled for the unexpired term only.
D.
The Mayor may also appoint with the advice and consent of the Borough
Council two alternate members of the Zoning Board of Adjustment which
shall each be appointed for a term of two years from January 1 of
the year of their appointment. The alternate members shall be designated
by the Chairman of the Zoning Board of Adjustment as "Alternate No.
I" and "Alternate No. II" and shall serve in rotation during the absence
or disqualification of any regular member.
[Added 12-17-1985 by Ord. No. 591]
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 of Adjustment member or a municipal employee.
There is hereby created the office of Attorney to the Zoning
Board of Adjustment. The Zoning Board of Adjustment may annually appoint
and fix the compensation of or agree upon the rate of compensation
of the Zoning Board of Adjustment Attorney, provided that it does
not exceed the amount appropriated by the governing body for its use
and it does not exceed the compensation set forth for the Zoning Board
of Adjustment Attorney in the annual Salary Ordinance.[1] The Zoning Board of Adjustment Attorney shall be an attorney
other than the Municipal Attorney.
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.
The Board shall adopt such rules and regulations as may be necessary
to carry into effect the provisions and purposes of this chapter.
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.
A.
The powers of the Zoning Board of Adjustment shall be in accordance
with N.J.S.A. 40:55D-69 et seq., and amendments and supplements thereto,
and with the provisions of this chapter.
B.
It is further the intent of this chapter to confer upon the Zoning
Board of Adjustment as full and complete powers as may lawfully be
conferred upon such Board, including, but not by way of limitation,
the authority, in connection with any case, action or proceeding before
the Board, to interpret and construe the provisions of this chapter
or any term, clause, sentence or word hereof and the Zoning Map, in
accordance with the general rules of construction applicable to legislative
enactments.
C.
The Board may, in appropriate cases and subject to appropriate conditions
and safeguards, relax or dispense with the terms of this chapter in
accordance with the general or specific rules contained herein, and
with the general rules hereby laid down that equity shall be done
in cases where the strict construction of the provisions of this chapter
would work undue hardship. The powers and duties of the Board having
been delegated to and imposed upon it by statute, the Board shall
in all cases follow the provisions applicable to it in said P.L. 1975,
c. 291,[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.
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 Chapter 85, Zoning, or the Official Map. Each appeal shall be taken within the twenty-day period prescribed by N.J.S.A. 40:55D-72 by filing a notice of appeal, in the manner set forth in Article II, § 32A-20B, of this chapter, and in accordance with the provisions of Article 9 of the Municipal Land Use Law of 1975, as the same may be amended from time to time, and the rules and regulations of the Board.
[Amended 7-26-1988 by Ord. No. 626; 8-28-1990 by Ord. No. 661]
B.
Required appeal and variance documents.
[Amended 8-28-1990 by Ord. No. 661]
(1)
Applications to the Board of Adjustment shall be filed in accordance
with the rules and regulations of the Board, the provisions of Article
9 of the Municipal Land Use Law of 1975 and the provisions of this
section.
(2)
When an appeal is taken from a decision of an administrative officer
or any other relief referred to in N.J.S.A. 40:55D-70a is sought,
the following documents shall be required:
(3)
The applicant shall serve a copy of the application upon the administrative
officer from whose decision the appeal was taken, who shall forthwith
transmit to the Board all papers constituting the record upon which
the action appealed from was taken.
(4)
When an interpretation of Chapter 85, Zoning, or the Zoning Map or any other relief referred to in N.J.S.A. 40:55D-70b is sought, the following documents shall be required:
(5)
When a variance from the provisions of Chapter 85, Zoning, or any other relief referred to in N.J.S.A. 40:55D-70c and d, 40:55D-34 or 40:55D-36 is sought, the following documents shall be required:
(a)
Twelve copies of the denial/decision of the Chief Construction
Official.
(b)
A check for the filing fee.
(c)
Twelve copies of a fully completed application form.
(d)
Twelve copies of the building plans submitted to the administrative
officer.
(e)
Proof that no taxes or assessments are due on the property.
(f)
Twelve copies of a plot plan showing the lot and block number
of the property, dimensions of the lot, dimensions and locations of
present structures, including all setbacks. The plan must be prepared
by a licensed professional authorized by state law or regulation to
prepare such a plan.
(g)
Twelve copies of a map showing all properties within 200 feet
of the property which is the subject of the application and approximate
location of all structures thereon, together with the name of the
owner(s). This map may be prepared by a licensed professional or by
the applicant, in which event the applicant must furnish the Board
with a certification that all information shown on the map is correct.
(h)
A copy of the proposed notice to adjoining property owners,
with all information complete except the hearing date.
(i)
A copy of the proposed affidavit of service.
(6)
All applications will be processed in accordance with the rules and
regulations established by the Board.
C.
An appeal to the Board of Adjustment shall stay all proceedings in
furtherance of the action in respect to 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.
D.
In granting subdivision or site plan approval in connection with
a use variance, the Board of Adjustment shall follow the same procedures
as the Planning Board as contained in this chapter.
E.
Public notice on any application for variances shall be given in
accordance with N.J.S.A. 40:55D-12.
In exercising the above-mentioned powers, the Board of Adjustment
may, in conformity with the provisions of P.L. 1975, c. 291,[1] or amendments thereto or subsequent statutes applying
thereto, reverse or affirm, wholly or in part, or modify the action,
order, requirement, decision, interpretation or determination appealed
from and, to that end, have all the powers of the administrative officer
from whom the appeal is taken.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
[Amended 7-16-2013 by Ord. No. 1024]
A.
Any variance 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 one year from the
date of publication 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
or conclusion in any manner of such appeal or proceeding; and also
except, however, in the case of a use variance which also involves
a subdivision or site plan approval, the variance shall extend for
the full period of preliminary approval.
B.
Upon a showing of good cause and if the reason(s) for the grant of
a variance have not changed, the Zoning Board of Adjustment is authorized
to, upon notice to all entitled property owners and the publication
of a legal notice in the official newspaper of the Borough, grant
an extension of time on the duration of the variance for a period
to be determined by the Board of Adjustment but not to extend beyond
an additional year. The Board of Adjustment shall not grant more than
two such extensions of any variance approval.
A.
The Board of Adjustment shall have such powers as are granted by
law to:
(1)
Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of Chapter 85, Zoning.
(3)
Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions, or by reason of other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation in Chapter 85, Zoning, would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship; provided, however, that no variance shall be granted under this subsection to allow a structure or use in a district restricted against such structure or use, and further provided that the proposed development does not require approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board shall review a request for variance pursuant to Section 47a of the Municipal Land Use Law of 1975, P.L. 1975, c. 291.[1]
[1]
Editor's Note: See N.J.S.A. 40:55D-60a.
(4)
In particular cases and for special reasons, grant a variance to
allow departure from any regulation adopted pursuant to Article 8
of the Municipal Land Use Law, so as to permit a 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; and an increase in the permitted floor area ratio
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 or undersized
lot or lots resulting from a minor subdivision. A variance granted
under this subsection shall be granted only by affirmative vote of
at least five members of the Board.
[Amended 8-28-1990 by Ord. No. 661]
(5)
Where an application or appeal relating to a specific piece of property seeks a variance from any regulation adopted pursuant to Article 8 of the Municipal Land Use Law, including without limitation a variance from the requirements of Chapter 85, Zoning, the purposes of the Municipal Land Use Law would be advanced by a deviation from the requirements of Chapter 85, Zoning, and the benefits of the deviation would substantially outweigh any detriment, grant such a variance; provided, however, that no variance from those departures enumerated in N.J.S.A. 40:55D-70d shall be granted under this subsection.
[Added 8-28-1990 by Ord. No. 661]
B.
No variance or other relief may be granted under the provisions of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and Chapter 85, Zoning. 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.
A.
The Zoning Board of Adjustment shall, in addition to the powers specified in § 32A-23 of this article, have power given by law to:
(1)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a
building or structure in the bed of a mapped street or public drainageway,
flood-control basin or public area reserved on the Official Map, pursuant
to N.J.S.A. 40:55D-32.
(2)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a
building or structure not related to a street.
B.
The Board of Adjustment shall have the power to grant, to the same
extent and subject to the same restrictions as the Planning Board,
subdivision or site plan approval pursuant to Article 6 of P.L. 1975,
c. 291,[1] or conditional use approval pursuant to N.J.S.A. 40:55D-67, whenever the Board is reviewing an application for approval for a use variance pursuant to Article II, § 32A-23A(4), of this chapter.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
A.
The Board of Adjustment shall render its decision not later than
120 days after the date a notice of appeal has been filed with the
Secretary of the Board of Adjustment from the decision of an administrative
officer, or not later than 120 days after the submission of a complete
application for development to the Board pursuant to the provisions
of N.J.S.A. 40:55D-70b. 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.
B.
The Board of Adjustment may refer any application 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 Board of Adjustment shall act.
C.
Whenever review or approval of an application by the County Planning
Board is required by Section 5 of P.L. 1968, c. 285 (N.J.S.A. 40:27-6.3),
in the case of a subdivision or by Section 8 of P.L. 1968, c. 285
(N.J.S.A. 40:27-6.6), in the case of a site plan, the Municipal 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.
