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.
[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.
(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.
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.
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.
(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.
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.
