A.
The North Arlington Zoning Board of Adjustment (herein
referred to as the 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 North Arlington
and shall be appointed by the Mayor with the advice and consent of
the Borough Council. In the event that the Mayor fails to make a nomination
at least 15 days prior to the date of the second regular public meeting
of the Council after a position becomes vacant or the Borough Council
fails to confirm a nomination, then the appointment shall be made
by the Borough Council by the vote of a majority of the members present
at the meeting, provided that at least three affirmative votes shall
be required, with the Mayor to have no vote thereon except in the
case of a tie. All persons so appointed shall serve for terms of four
years from January 1 of the year of their appointment.
B.
Alternate members shall be appointed for two years,
and at the time of their appointments designated Alternate No. 1 and
Alternate No. 2. 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.
C.
No member of the 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.
D.
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.
E.
A member after a public hearing if requested, may
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.
F.
The Board of Adjustment shall annually elect a Chairperson
and Vice Chairperson from its members and a Secretary who may or may
not be a member of the Board or a municipal employee.
G.
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 Chairperson of the Planning Board
shall make the choice.
H.
The governing body shall make provisions in its budget
and appropriate funds for the expenses of the Board of Adjustment.
I.
The 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.
A.
The Board of Adjustment shall have the following powers:
(1)
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
(2)
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
(3)
Variances. Where:
(a)
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
(b)
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 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 the power to review a request for a variance pursuant to N.J.S.A. 40:55D-60a; and
(4)
Use variances. 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 1) a use or principal structure
in a district restricted against such use or principal structure,
2) an expansion of a nonconforming use, 3) deviation from a specification
or standard pursuant to N.J.S.A. 40:55D-67 pertaining solely to a
conditional use, 4) an increase in the permitted floor area ratio
as defined in N.J.S.A. 40:55D-4, 5) 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 6) 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.
(6)
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.
(7)
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.
(8)
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.
B.
Other powers.
(1)
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.
(2)
Whenever an application for development requests relief pursuant to Subsection B(1)(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.
(3)
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 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.
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.
A.
Appeals to the Board of Adjustment may be taken by
any interested party affected by any decision of an official of North
Arlington 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 nine 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.
[Amended 2-9-2006 by Ord.
No. 1953]
B.
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.
C.
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.
D.
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 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 of New Jersey
upon notice to the municipal official from whom the appeal is taken
and on due cause shown.
E.
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 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.
F.
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.
A.
The Board shall render a decision not later than 120
days after the date (1) the appeal is taken from the decision of the
municipal official or (2) the submission of a complete application
for development to the Board of Adjustment.
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.
C.
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.
