Recognizing that certain uses, activities and structures are necessary to serve the needs and conveniences of the Borough, and at the same time, recognizing that such uses may be or become inimical to the public health, safety and general welfare if located and operated without proper consideration being given to existing conditions and the character of the surrounding area, such uses are hereby designated as conditional uses requiring a conditional use permit. The procedures for application, public hearing and notice for conditional use permits are set forth in Chapter 32A, Land Use Procedures, of the Code. The granting of a permit for conditional uses shall comply with the terms and conditions established by this section using the following stipulations and guiding principles:
A.
Stipulations. The use for which application is being made is specifically
authorized as a conditional use in the zoning district in which it
is located.
B.
Principles. The design, arrangement and nature of the particular
use is such that the public health, safety and welfare are protected
and reasonable consideration is afforded to the following:
(1)
The character of the neighborhood and zone.
(2)
The conservation of property values and the proposal's impact upon
the orderly development of adjacent properties in accordance with
the zoning classification of such properties.
(3)
The health and safety of residents or workers on adjacent property
and in the surrounding neighborhood.
(4)
The potential congestion of vehicular traffic or creation of undue
hazard.
(5)
The principles and objectives of the Master Plan of the Borough.
(6)
The protection of natural features.
Automotive service stations may be permitted by special use
permits in all general business districts, provided that the following
standards and conditions are met:
A.
Lot size. The minimum lot or parcel of land so to be used shall be
10,000 square feet with a street frontage of at least 100 feet and
a depth of at least 100 feet.
B.
Setbacks.
(1)
Buildings. The walls of any building shall be set back at least 50
feet from any residential zone boundary or existing residential property,
at least 25 feet from any adjoining property line and at least 40
feet from a street right-of-way line.
(2)
Gasoline pumps. All fuel and oil pumps and other apparatus shall
be located as to permit safe and convenient traffic circulation. Every
gasoline or oil tank, pump or other device, appliance or apparatus
shall be located at least 40 feet from a street right-of-way line
or property line and at least 50 feet from a residential zone boundary
or existing dwelling. All fuel pumps shall be attendant-operated.
(3)
Paved areas. All paved areas within the property shall be at least
five feet from a property line, 10 feet from a street right-of-way
line and 25 feet from a residential zone boundary or existing residential
use and bounded by concrete curbing at least six inches above the
surface.
(4)
Driveways. Entrance and exit driveways shall be at least 30 feet
in width, with a three-foot radius at the curbline. There shall be
a safety zone between driveways of at least 30 feet, and the driveway
shall be at least 10 feet from adjoining property lines. Driveways
shall be at least 100 feet from an intersection of street lines. No
more than two driveways shall be permitted for each 200 feet of street
frontage.
C.
Location. The nearest boundary line of the lot or parcel of land
to be used as an automobile service station shall be at least 300
feet from the boundary line of property which is used as, or upon
which is erected: a public or private school playground, church or
other place of worship, public building or place of public assembly,
public playground or civic center, fire house or fire station. The
distance shall be measured in a straight line from the center line
of streets forming the shortest route from a point opposite the nearest
side boundary line of the public entrance to a point opposite the
nearest boundary line of the service station or garage lot. No automobile
service station shall be located within 300 feet of another service
station or existing public garage.
D.
Parking. Adequate parking for service vehicles and automobiles of
employees and patrons shall be provided. Not more than three patron
parking spaces shall be provided for each service bay. Not more than
six motor vehicles may be located upon any automobile service station
premises outside of a closed or roofed building for a period of time
not to exceed 48 hours, and provided that said motor vehicles are
awaiting repair by the owners thereof.
E.
Prohibited uses.
(1)
No new or used automobile sales shall be conducted on the premises.
(2)
No major bodywork shall take place at automobile service stations.
(3)
No junked motor vehicle, or part thereof, or motor vehicles incapable
of normal operation upon the highway shall be permitted on the premises
of any service station. It shall be deemed prima facie evidence of
violation of this chapter if more than three motor vehicles incapable
of operation are located at any one time upon any premises not within
a closed and roofed building.
F.
Repairs. Any repairs of motor vehicles shall be performed in a fully
enclosed building. No parts or partially dismantled motor vehicles
may be stored out of doors.
G.
Tanks and drains.
(1)
Floor drains shall contain oil and grease traps and shall not be
connected to any sanitary sewer system or storm drain.
(2)
All storage tanks shall be installed below ground level. Where the
possibility of contamination of underground water resources exists,
the applicant will be required to show that ample precautions against
leakage and seepage have been taken.
[Amended 3-24-1998 by Ord. No. 800]
Churches and places of worship may be permitted by conditional
use permit in any GB zone, provided that the following conditions
are met:
A.
Minimum lot area. The minimum lot or parcel of land to be used shall
be two acres.
B.
Minimum yard requirements. The minimum front, rear and side yards
shall conform to those established for the R-1 Single-Family Residential
Zone.
C.
Maximum height of buildings. No principal building shall exceed a
height of 35 feet or 2 1/2 stories. No detached accessory building
shall exceed 3/4 the height of the principal building.
D.
Detached accessory buildings. Minimum distances shall conform to
those established for the R-1 Single-Family Residential Zone.
E.
Lot coverage. The lot coverage by principal and accessory buildings
combined shall not exceed 20% of the land area of the lot.
F.
Driveways. Driveways shall be at least 10 feet from any side lot
line and 25 feet from the side line of any residential property.
[1]
Editor's Note: Former § 85-43, Quick-service restaurants,
was repealed 3-23-2010 by Ord. No. 960.
Public utility uses intended to be regulated by this section
apply to utility installations such as power generating stations,
electric substations, power transmission lines, radio or television
signal towers, telephone exchanges and similar facilities, but shall
not apply to telephone, gas, water, sewer, electric or community antenna
television facility distribution lines and similar facilities intended
to provide direct service to properties, and may be permitted in any
zone district by special permit, provided that the following are complied
with:
A.
Lot size. The lot shall conform to the lot area requirements of the
zone in which it is located.
B.
Setbacks. All structures shall meet the yard and height requirements
of the zone in which it is located.
C.
Parking. Adequate provision shall be made for off-street parking in accordance with the ratio, location and quantity specified in § 85-36A(1).
D.
Location. The utility shall provide proof that the proposed installation
in its specific location is necessary and essential for the efficiency
of the public utility system or the satisfactory and convenient provision
of service by the utility to the neighborhood or area in which the
particular use is to be located.
[Added 4-23-2002 by Ord. No. 846]
Wireless communications towers, antennas and associated facilities
may be permitted by conditional use in the General Business (GB District)
and Industrial Park (IP) Districts I, II and III, provided that the
applicable standards and conditions set forth in this chapter are
met.
County, state and federal facilities may be permitted by conditional
use permit in any zone district, provided that the following standards
and conditions are met:
A.
Lot size. The lot shall conform to the lot area requirements of the
zone in which it is located.
B.
Setbacks. All structures shall meet the yard and height requirements
of the zone in which it is located.
C.
Parking. Adequate provision shall be made for off-street parking in accordance with the ratio, location and quantity specified in § 85-36A(1).
D.
Location. The utility shall provide proof that the proposed installation
in its specific location is necessary and essential for the efficiency
of the public utility system or the satisfactory and convenient provision
of service by the utility to the neighborhood or area in which the
particular use is to be located.
[Added 10-23-2018 by Ord.
No. 2018-10]
A.
Purpose. The purpose of this section is to regulate the location
and operation of retail purveyors of tobacco and tobacco products,
cannabis, electronic vapor devices, electronic vapor inhalation substances,
hookahs, and electronic/vapor substance inhalation shops in the Borough
of Ho-Ho-Kus, Bergen County, New Jersey in order to maintain the Borough's
character, the diversity and vitality of the community's commercial
areas, and the quality of life of Ho-Ho-Kus residents. It is presumed
that establishing or preserving an appropriate and balanced mix of
commercial business will more effectively serve to achieve this purpose
as a strategy to maintain the economic health of the Borough's business
districts and its suburban ambiance, and will promote the redevelopment
of the Borough's downtown area.
B.
Title. This section may be known and cited as "Tobacco Shops, Smoke
Shops, Cannabis Shops and Vapor Inhalation Shops Regulations."
C.
ADVERTISING
BOROUGH ADMINISTRATOR
BUSINESS
CANNABIS
CANNABIS RETAILER
CANNABIS SHOP
CREATION OF A TOBACCO OR SMOKE SHOP OR AN ELECTRONIC/VAPOR SUBSTANCE
INHALATION SHOP
(1)
(2)
(3)
ELECTRONIC VAPOR DEVICE
ELECTRONIC/VAPOR INHALATION SUBSTANCE PRODUCTS
ELECTRONIC/VAPOR SUBSTANCE INHALATION SHOPS
EMPLOYEE
HOOKAH
MINOR
NONPROFIT ENTITY
PERSON
PUBLIC PLAYGROUND/PARK/RECREATION AREA
SCHOOL
SELF-SERVICE MERCHANDISING
TOBACCO OR SMOKE SHOP
TOBACCO PRODUCT
TOBACCO RETAILER
TOBACCO VENDING MACHINE
TRANSFER OF OWNERSHIP OR CONTROL OF A TOBACCO OR SMOKE SHOP
OR AN ELECTRONIC/VAPOR SUBSTANCE INHALATION SHOP
(1)
(2)
(3)
ZONING CODE
Definitions. The words and terms used in this section shall have
the meanings as provided herein. Where words or terms are not defined
in this section they shall have the meanings ordinarily ascribed to
them. Should any word, term or phrase defined in this section conflict
with any other word, term or phrase defined in this title, the definitions
provided in this section shall apply.
Media (printed, electronic or otherwise) that calls the public's
attention to things for sale.
The Borough Administrator of the Borough or the Borough Administrator's
designee.
Any sole proprietorship, joint venture, limited liability
company, corporation or other business entity formed for profit-making
purposes, including retail establishments where goods or services
are sold, as well as professional corporations and other entities
where legal, medical, dental, engineering, architectural or other
professional services are delivered.
All parts of the plant cannabis sativa linnaeus, cannabis
indica, or cannabis ruderals, whether growing or not; the seeds thereof;
the resin and/or oil extracted from any part of the plant; every compound,
manufacture, salt, derivative, mixture, concentrate, or preparation
of the plant, its seeds, or resin; and edible or topical products
containing any of the above.
Any person or entity that operates a store, stand, booth,
concession, or other place at which sales, rentals, or other giveaways
of cannabis products are made to purchasers for consumption or use.
Any store, stand, booth, concession or other place which
sells, manufacturers, grows, rents or gives away cannabis or any product
containing cannabis or allows or permits the use or consumption of
cannabis or any product containing cannabis.
The opening or commencement of any such establishment as a new
establishment; or
The conversion of an existing establishment, to a tobacco or
smoke shop establishment or an electronic/vapor substance inhalation
shop establishment as defined in this chapter; or
The relocation of any such establishment.
Any device with a heating element, a batter, or an electronic
circuit that provides nicotine or other vaporized liquids to the user
in a manner that simulates tobacco products, shisha, herbs, or any
other product that produces smoke.
Cartridges, cartomizers, e-liquid, smoke juice, tanks, tips,
atomizers, vaporizers, electronic smoking device batteries, electronic
smoking device chargers, and any other item specifically designed
for the preparation, charging, or use of electronic vapor devices.
Are defined as those businesses where customers can smoke
or inhale vapor from electronic/vapor inhalation substance products,
commonly known as "electronic cigarettes," "e-cigarettes," "e-cigars,"
e-cigarillos," "e-pipes," e-hookahs," "electronic nicotine delivery
systems," and other similar devices.
Any person who is employed by an employer for consideration
for direct or indirect wages or profit, or is an independent contractor,
agent or consultant of an employer and any person who volunteers his
or her services for a nonprofit entity.
A pipe commonly, but not always, made of glass, used for
vaporizing and smoking tobacco, flavored tobacco, nonflavored tobacco,
shisha, dried fruits, cannabis or other substances in which vapor
or smoke is passed through a water basin before inhalation.
Any individual who is less than 21 years old.
Any corporation, unincorporated association or other entity
created for charitable, philanthropic, educational, character-building,
political, social, or other similar purpose, the net proceeds from
the operation of which are committed to the promotion of the objectives
or purposes of the entity and not to private gain. A public agency
is not a nonprofit entity within the meaning of this section.
Any individual, partnership, cooperative association, private
or private corporation, limited liability company, personal representative,
receiver, trustee, assignee, or any other legal entity.
An area to which the public, and particularly minors, come
to participate in athletic or recreational activities, whether or
not such activities are supervised or organized. Such areas include,
but are not limited to, publicly owned and maintained parks, athletic
fields, playgrounds, picnic areas, any outdoor premises or grounds
owned or operated by the Borough, a public or private school, child
care center, and any youth or recreational facilities that contains
any play or athletic equipment used or intended to be used by minors.
An institution of learning for minors, whether public or
private, preschool or day care services, kindergarten, elementary
school, junior high school, senior high school, or any special institution
of learning, a vocational or professional institution or an institution
of higher education, including a community or junior college, college,
or university.
Open display of tobacco products and point-of-sale tobacco-related
promotional products that the public has access to without the intervention
of an employee.
Any store, stand, booth, concession, or other place that
either devotes a substantial portion of its display area (i.e., 15%
or more of floor space) to tobacco products, or devotes more than
16 cubic feet of shelf space, for the display or sale of tobacco or
drug paraphernalia to purchasers for consumption or use. This definition
includes electronic vapor devices, electronic vapor inhalation substances
and hookahs.
Any product containing tobacco leaf, including, but not limited
to, cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing
tobacco, dipping tobacco, bidis, or any other preparation of tobacco;
and any product or formulation of matter containing biologically active
amounts of nicotine that is manufactured, sold, offered for sale,
or otherwise distributed with the expectation that the product or
matter will be introduced into the human lungs or mouth in smoke or
vapor form, using any tobacco paraphernalia, but does not include
any product specifically approved by the United States Food and Drug
Administration for use in treating nicotine or tobacco dependence.
Any person or entity that operates a store, stand, booth,
concession, or other place at which sales, rentals, or other giveaways
of tobacco products, electronic vapor devices, electronic vapor inhalation
substances, and hookahs are made to purchasers for consumption or
use.
Any electronic or mechanical device or appliance, the operation
of which depends upon the insertion of money, whether in coin or paper
currency, or other things representative of value, that dispenses
or releases a tobacco product.
The sale, lease or sublease of such establishment; or
The transfer of securities which constitute a controlling interest
in such establishment, whether by sale, exchange, merger, or similar
means; or
The establishment of a trust, gift or other similar legal devise
which transfers ownership or control of such establishment, except
for transfer by bequest or other operation of law upon the death of
the person possessing such ownership or control.
Chapter 85 of the Borough Code of the Borough of Ho-Ho-Kus, Bergen County, New Jersey, as it may be amended from time to time.
D.
Tobacco or smoke shop, or electronic/vapor substance inhalation shop
conditional use permit required.
(1)
No person shall cause or permit the creation of a tobacco or
smoke shop or an electronic/vapor substance inhalation shop, any substantial
enlargement of a tobacco or smoke shop or an electronic/vapor substance
inhalation shop, or the transfer of ownership or control of any tobacco
or smoke shop or electronic/vapor substance inhalation shop, without
first obtaining and maintaining a conditional use permit as provided
in this chapter.
E.
Development standards; general and specific. An application for a
conditional use permit shall be approved by the Planning Board upon
a determination that all of the following standards have been met.
(1)
The tobacco or smoke shop, or electronic/vapor substance inhalation
shop shall be located within a permitted zone. Tobacco or smoke shops,
or electronic/vapor substance inhalation shops may be located only
within the GB District. No such establishment shall be permitted to
locate in any area outside such zoning classifications.
(2)
The tobacco or smoke shop, or electronic/vapor substance inhalation
shop shall meet the following minimum spacing and proximity requirements:
(a)
No tobacco or smoke shop, or electronic/vapor substance inhalation
shop shall be located within one mile of any other such shop.
(b)
No tobacco or smoke shop, or electronic/vapor substance inhalation
shop shall be located within one mile of any parcel of land zoned
for residential use.
(c)
No tobacco or smoke shop, or electronic/vapor substance inhalation
shop shall be located within one mile of any parcel of land that contains
any one or more of the following specific land uses:
(d)
No tobacco or smoke shop, or electronic/vapor substance inhalation
shop located in a building sharing one or more common walls with another
retail or commercial establishment, or sharing common attic space
with any other use, shall permit smoking or use of any electronic
vapor device or hookah anywhere on the premises.
(3)
The tobacco or smoke shop, or electronic/vapor substance inhalation
shop shall be in substantial compliance with the requirements of all
health and safety codes, including, but not limited to, the building
code, fire code, electrical code, mechanical code and plumbing code.
Unless delay is caused by refusal of the applicant to schedule or
permit timely inspection, substantial compliance shall be verified
no later than 30 days following the application or the applicant shall
be deemed to be in substantial compliance with such requirements for
the purposes of permit issuance.
(4)
The tobacco or smoke shop, or electronic/vapor substance inhalation shop shall be in substantial compliance with the development standards for the commercial zone in which the establishment is to be located, and with the general provisions of Chapter 85 relating to development standards and of § 85-37 relating to sign regulations, except that, to the extent that provisions of this section may conflict or be more restrictive, this § 85-45.0 shall control.
(5)
The tobacco or smoke shop, or electronic/vapor substance inhalation
shop meets the following minimum specific standards:
(a)
No person or business shall engage in the sale of tobacco products,
hookahs, electronic vapor devices and/or electronic/vapor inhalation
substance products without first posting a plainly visible sign at
the point of purchase of tobacco products, hookahs, electronic vapor
devices and/or electronic vapor inhalation substance products that
has wording similar to, "THE SALE OF TOBACCO PRODUCTS, HOOKAHS, AND
ELECTRONIC VAPOR DEVICES AND PRODUCTS TO PERSONS UNDER 21 YEARS OF
AGE IS PROHIBITED BY LAW AND SUBJECT TO PENALTIES. PHOTO IDENTIFICATION
IS REQUIRED OF PURCHASERS APPEARING TO BE 26 YEARS OF AGE AND YOUNGER."
The letters of the sign shall be at least 1/4 inch high, as set forth
in the N.J. Department of Health Tobacco Control Regulations.
(b)
No person, business, tobacco retailer, or owner, manager, employee
or operator of any establishment subject to this section shall sell,
offer to sell or permit to be sold any tobacco or tobacco product,
electronic vapor devices, hookahs and/or electronic/vapor inhalation
substance products to an individual without requesting and examining
identification of customers appearing to be 26 years and younger for
the purpose of establishing the purchaser's age as 21 years or greater,
unless the seller has some other clear or convincing basis for determining
the buyer's age.
(c)
No person, business, tobacco retailer or other establishment
shall sell or offer for sale cigarettes or other tobacco or smoking
products not in the original packaging provided by the manufacturer
and with all required health warnings.
(d)
It shall be unlawful for any person, business or tobacco retailer
to sell, permit to be sold, offer for sale or display for sale any
tobacco product, electronic vapor devices and/or electronic/vapor
inhalation substance products by means of self-service merchandising
or by means other than vendor-assisted sales.
(e)
No person, business or tobacco retailer shall locate, install,
keep, maintain, or use, or permit the location, installation, keeping,
maintenance, or use on his, her or its premises, any tobacco vending
machine for the purpose of selling or distributing any tobacco product.
(f)
It shall be unlawful for any person, business or tobacco retailer
to distribute free tobacco products or promotional items, except in
enclosed areas where minors are not permitted.
(g)
In addition to the standards in this chapter, each tobacco or
smoke shop, or electronic/vapor substance inhalation shop shall comply
with each and every provision of this Code.
F.
Measure of distance. Distance, without regard to intervening structures,
shall be a straight line measured from the closest exterior structural
wall of a tobacco or smoke shop or electronic/vapor substance inhalation
shop to the closest property line of a religious facility, courthouse,
day nursery, public playground/park/recreation area, school, residential
zone, vocational or professional institution, institution of higher
education, including community or junior college, college, university,
other tobacco shops or smoke shops.
G.
Prohibited in all districts.
(1)
All classes of cannabis establishments or cannabis distributors
or cannabis delivery services as said terms are defined in Section
3 of P.L. 2021, c. 16,[1] but not the delivery of cannabis items and related supplies
by a delivery service, are hereby prohibited from operating anywhere
in the Borough.
[Amended 7-20-2021 by Ord. No. 2021-52]
[1]
Editor's Note: See N.J.S.A. 24:6I-33.
H.
Violations and penalties.
(1)
Any person, firm or corporation violating any of the provisions of this chapter may be charged with either an infraction or a misdemeanor and shall be subject to the provisions of the penalty clause as set forth in § 1-16 of this Code.
(2)
Each person found guilty of a violation shall be deemed guilty of a separate offense for every day during any portion of which a violation of any section of this section is committed, continued or permitted by such person, and shall be punishable as provided for in § 1-16. Any use or occupation of any building or structure maintained contrary to the provisions of this title shall constitute a public nuisance.
I.
Conflicts with other applicable laws. This chapter shall not be interpreted
or construed to permit tobacco vending machines and distribution of
tobacco product samples where they are otherwise restricted by other
applicable laws. Nor shall this chapter be construed to be cause for
breach of any preexisting private contract, or cause for interference
with regulations imposed by state or federal law or related to interstate
commerce.
J.
Repealer. All ordinances or parts of ordinances inconsistent with
the provisions of this section are hereby repealed to the extent of
such inconsistency.
K.
Severability. Each subsection, sentence, clause and phrase of this
section is declared to be an undisputed subsection, sentence, clause
and phrase, and the finding or holding of any such part of this section
to be unconstitutional, void or ineffective for any cause or reason
shall not affect any other portion of this section.
