Chapter 585 Zoning Board of Adjustment

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 Township of Washington, Bergen County, New Jersey, appointed by the governing body 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 section shall, however, be construed to affect the term of any present member of the Zoning Board of Adjustment, all of whom shall continue in office until the completion of the term for which they were appointed.

No member of the Zoning Board of Adjustment may hold any elective office or position under the municipality.

A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.

Alternate members.

[Added 3-1-1982 by Ord. No. 82-1]

There shall be appointed by the governing body two residents of the Township of Washington, Bergen County, New Jersey, to serve as alternate members of the Zoning Board of Adjustment and who shall be designated by the governing body as "Alternate No. 1" and "Alternate No. 2." The terms of the two alternate members first appointed hereunder shall be so determined that to the greatest practicable extent the expiration of such terms shall be distributed evenly over the first two years after their appointment, provided that the initial term of no alternate member shall exceed two years. Thereafter, the term of each alternate member shall be two years. Alternate members shall serve from January 1 of the year of their appointment.

No alternate member of the Zoning Board of Adjustment may hold any elective office or position under the municipality.

A vacancy of an alternate member occurring otherwise than by expiration of term shall be filled for the unexpired term only.

(4)

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.

Officers. The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary, who may or may not be a Board member or another municipal employee.

Board of Adjustment Attorney. There is hereby created the office of Attorney to the Zoning Board of Adjustment. The Zoning Board of Adjustment may annually appoint, fix the compensation of or agree upon the rate of compensation of the Zoning Board of Adjustment Attorney, who shall be an attorney other than the Municipal Attorney.

Experts and staff. 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.

§ 585-2 Adoption of rules and regulations.

Editor's Note: The provisions in this section were designated as original § 5-45, Zoning Board of Adjustment, of the 1985 Code, and were relocated to this section at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

The Zoning Board of Adjustment as heretofore established by amendment to the Administrative Code of the Township of Washington[1] 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 authority 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.

Editor's Note: See now § 585-1, above.

§ 585-3 Powers generally.

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.

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, 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 Chapter 580, Zoning, of the Code of the Township of Washington, or any term, clause, sentence or word thereof and the Zoning Map in accordance with the general rules of construction applicable to legislative enactments.

The Board may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances from the terms of Chapter 580, Zoning, 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 the ordinance 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.

Editor's Note: See N.J.S.A. 40:55D-1 et seq.

§ 585-4 Appeals and applications.

Appeals to the Board of Adjustment may be taken by any interested party. Each appeal shall be taken within the 20 days prescribed by the statute by filing a notice of appeal with the officer from whom the appeal is taken, together with three copies of said notice with the Secretary of the Board of Adjustment. Said notice of appeal shall specify the grounds for said appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

[Amended 6-6-1988 by Ord. No. 88-14]

Applications addressed to the original jurisdiction of the Board of Adjustment without prior application to an administrative officer shall be filed with the Secretary of the Zoning Board of Adjustment. Three copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than 10 days prior to the date set for hearing, the applicant shall also file all plot plans, maps or other papers required by virtue of any provision of this chapter or any rule of the Board of Adjustment. The applicant shall obtain all necessary forms from the Secretary of the Zoning Board of Adjustment. The Secretary of the Board shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board.

Any appeals or applications within the jurisdiction of the Zoning Board of Adjustment shall be filed with the Secretary of the Zoning Board of Adjustment. All appeals and applications allowed by the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., shall be filed in conformity with the attached checklist (the "Zoning Board Checklist).[1] The Zoning Board of Adjustment or its authorized designee shall determine completeness of appeals and applications in accordance with N.J.S.A. 40:55D-10.3.

[Added at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]

§ 585-5 Power to reverse or modify decisions.

Editor's Note: The Zoning Board Checklist is included as an attachment to this chapter.

An appeal stays all proceedings in furtherance of the action in respect of 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 cases, 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.

In exercising the above-mentioned power, the Board of Adjustment may, in conformity with the provisions of P.L. 1975, c. 291,[1] or amendments thereto or subsequent statutes applying, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and make such order, requirement, decision or determination as ought to be made, and to that end have all the powers of the administrative officer from whom the appeal was taken.

§ 585-8 Public notice required for appeals and requests for interpretation.

Editor's Note: See N.J.S.A. 40:55D-1 et seq.

§ 585-6 Expiration of variance.

Any variance from the terms of Chapter 580, Zoning, 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 notice 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 in any manner of such appeal or proceeding.

§ 585-7 Powers granted by law.

[Amended 6-6-1988 by Ord. No. 88-14]

The Board of Adjustment shall have the powers granted by N.J.S.A. 40:55D-70, and such powers shall be subject to the provisions thereof.

[Added 2-24-2003 by Ord. No. 03-3]

In addition to all notice requirements presently existing or hereafter required of applicants appearing before the Board of Adjustment, prescribed by law, ordinance or other regulation, an applicant shall be required to give public notice pursuant to law (including N.J.S.A. 40:55D-12) with respect to appeals of determinations of administrative officers pursuant to Subsection (a) of § 57 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-70), and requests for interpretation pursuant to Subsection (b) of § 57 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-70).

§ 585-9 Powers to direct issuance of permits or grant approvals.

The Zoning Board of Adjustment shall, in addition to the power specified in § 585-7, have power given by law 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 on the Official Map.

Direct issuance of a permit, pursuant to N.J.S.A. 40:55D-36, for a building or structure not related to a street.

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 and in accordance with N.J.S.A. 40:55D-76b.

[Amended 6-6-1988 by Ord. No. 88-14]

§ 585-10 Time limit for decision.

The Board of Adjustment shall render its decision not later than 120 days after the date an appeal is taken from the decision of an administrative officer or 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.

§ 585-11 Meetings.

Meetings of the Zoning Board of Adjustment shall be scheduled no less often than once a month, and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process.

Special meetings may be provided for at the call of the Chairman or on the request of any two Board members, which shall be held on notice to its members and the public in accordance with all applicable legal requirements.

No action shall be taken at any meeting without a quorum being present.

All action shall be taken by a vote prescribed by N.J.S.A. 40:55D-9a.

[Amended 6-6-1988 by Ord. No. 88-14]

All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meetings Act, P.L. 1975, c. 231.[1]

§ 585-13 Zoning Board of Adjustment fees.

Editor's Note: See N.J.S.A. 10:4-6 to 10:4-10.

§ 585-12 Minutes.

Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Board and of the persons appearing by attorney, the action taken by the Board, 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 Municipal Clerk. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceeding concerning the subject matter of such minutes. Such interested party may be charged a fee for reproduction of the minutes for his use as provided for in the rules of the Board.

[Amended 6-6-1988 by Ord. No. 88-14; 5-17-2004 by Ord. No. 04-6; 2-23-2015 by Ord. No. 15-01]

There shall be an application fee as set forth in Chapter 212, Fees, payable upon the filing of any application with the Zoning Board of Adjustment or for the rendering of any service by the Zoning Board of Adjustment or any member of its administrative staff for the following applications:

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]

For bulk variances.

To appeal the Zoning Officer's decision.

For use variances.

In addition to the required fees set forth in Subsection A, there shall also be posted at the time of filing of any application, the following escrows, to be utilized in connection with the pending application before the Zoning Board of Adjustment, and said escrows shall be adjusted and/or replenished as required by the Zoning Board of Adjustment:

Engineering escrow: $1,000.

Legal escrow: $500.

Legal advertisement: $250.

There shall be paid in connection with any Zoning Officer approval request a fee as set forth in Chapter 212, Fees.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]

Development regulation books shall be available at a charge as set forth in Chapter 212, Fees.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]

§ 585-14 Hearings.

Rules. The Zoning Board of Adjustment shall make rules governing the conduct of hearings before such body, which rules shall not be inconsistent with the provisions of N.J.S.A. 40:55D-1 et seq. or of this chapter.

Oaths. The officer presiding at the hearing or such person as he 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 Municipal Investigations Law, P.L. 1953, c. 38 (N.J.S.A. 2A:67A-1 et seq.) shall apply.

Testimony. 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.

Evidence. Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.

Records. Each Board shall provide for the verbatim recording of the proceedings by either stenographic, mechanical or electronic means. The Board shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense.

§ 585-15 Notice requirements.

Whenever a hearing is required on an application for development pursuant to N.J.S.A. 40:55D-1 et seq. or pursuant to the determination of the municipal agency in question, the applicant shall give notice thereof as follows:

Public notice shall be given by publication in the official newspaper at the municipality at least 10 days prior to the date of the hearing.

Notice of a hearing shall be given to the owners of all real property as shown on the current tax duplicates, 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 the said current tax duplicate or his agent in charge of the property or by mailing a copy thereof by certified mail to the property owner at his address as shown on said current tax duplicate. 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.

[Amended 6-6-1988 by Ord. No. 88-14]

Notice of all hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the Clerk of such municipality, which notice shall be in addition to the notice required to be given pursuant to Subsection B above to the owners of lands in such adjoining municipality which are located within 200 feet of the subject premises.

Notice shall be given by personal service or certified mail to the County Planning Board of a hearing on an application for development of property adjacent to an existing county road or proposed road shown on the Official County Map or on the County Master Plan, adjoining other county land or situate within 200 feet of a municipal boundary.

Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application for development of property adjacent to a state highway.

Notice shall be given by personal service or certified mail to the State Planning Commission of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the Municipal Clerk pursuant to Section 6b of P.L. 1975, c. 291.[1]

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]

§ 585-16 List of property owners furnished.

Editor's Note: See N.J.S.A. 40:55D-10b.

All notices hereinabove specified in this section shall be given at least 10 days prior to the date fixed for hearing, and the applicant shall file an affidavit of proof of service with the Board holding the hearing on the application for development.

Any notice made by certified mail as hereinabove required shall be deemed to be complete upon mailing in accordance with the provisions of N.J.S.A. 40:55D-14.

Form of notice. All notices required to be given pursuant to the terms of this chapter shall state the date, time and place of the hearing, the nature of the matters to be considered and identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the Municipal Tax Assessor's office, and the location and times at which any maps and documents for which approval is sought are available as required by law.

[Amended 6-6-1988 by Ord. No. 88-14; at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]

Pursuant to the provisions of N.J.S.A. 40:55D-12c, the Tax Assessor shall, within seven days after receipt of a request therefor and upon receipt of payment of a fee set forth in Chapter 212, Fees, made payable to the Municipal Chief Financial Officer, 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 pursuant to § 585-15B of this chapter.

§ 585-17 Form of decisions; mailing and filing.

The Board 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 findings and conclusions shall be provided by the Board in accordance with N.J.S.A. 40:55D-10g.

[Amended 6-6-1988 by Ord. No. 88-14]

A copy of the decision shall be mailed by the Board within 10 days of the date of decision to the applicant, or if represented, then to his attorney, without separate charge. A copy of the decision shall also be mailed to all persons who have requested it and who paid the fee prescribed by the Board for such service. A copy of the decision shall also be filed in the office of the Municipal Clerk, who shall make a copy of such filed decision available to any interested party upon payment of a fee calculated in the same manner as those fees established for copies of other public documents in the municipality.

§ 585-18 Publication of decisions.

A brief notice of every final decision shall be published in the official newspaper of the municipality. Such publication shall be arranged by the Secretary of the Planning Board or Zoning Board of Adjustment, as the case may be, without separate charge to the applicant. Said notice shall be sent to an official newspaper for publication within 10 days of the date of any such decision.

§ 585-19 Proof of payment of taxes.

Pursuant to the provisions of N.J.S.A. 40:55D-39 and 40:55D-65, every application for development submitted 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; or, if it is shown that taxes or assessments are delinquent on said property, any approvals or other relief granted by the Board shall be conditioned upon either the prompt payment of such taxes or assessments or the making of adequate provision for the payment thereof in such manner that the municipality will be adequately protected.

§ 585-20 Appeals.

Appeals to Zoning Board of Adjustment. An appeal to the Zoning Board of Adjustment may be taken by any interested party affected by any decision of the administrative officer of the municipality based on or made in the enforcement of the Zoning Ordinance[1] or Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal in the manner set forth in § 585-4A of this chapter and in accordance with the provisions of Article 9 of the Municipal Land Use Law of 1975.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]