A Zoning Board of Adjustment is hereby established, pursuant to N.J.S.A. 40:55D-69 et seq., consisting of seven residents of the Borough of Cresskill, appointed by the Mayor and subject to confirmation by the Council, to serve for terms of four years from January 1 of the year of their appointment. The terms of members first appointed shall be so determined that to the greatest practicable extent the expiration of such terms shall be distributed evenly over the first four years after their appointment, provided that the initial term of no member shall exceed four years. Thereafter, the term of each member shall be for four years. Nothing in this chapter shall, however, be construed to affect the term of any present member of the Zoning Board of Adjustment, all of whom shall continue in office until the completion of the terms 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. The vacancy shall be filled by appointment by the Mayor, subject to confirmation by the Council.
There may be two alternate members of the Zoning Board of Adjustment appointed by the Mayor and subject to confirmation by the Council. Alternate members shall be designated by the Chairman as "Alternate No. 1" and "Alternate No. 2" and shall serve in rotation during the absence or disqualification of any regular member or members. The term of each alternate member shall be two years.
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.
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.
The Zoning Board of Adjustment may also employ or contract for and fix the compensation of such experts and other staff and services as it may deem necessary. The Board shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
The Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter. In the issuance of subpoenas, administration of oaths and taking of testimony, the provisions of the County and Municipal Investigations Law of 1953, N.J.S.A. 2A:67A-1 et seq., shall apply.
[Amended 10-9-1986 by Ord. No. 86-21-938]
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, but not by way of limitation, the authority, in connection with any case, action or proceedings before the Board, to interpret and construe the provisions of this chapter or any term, clause, sentence or word hereof and the Zoning Map in accordance with the general rules of construction applicable to legislative enactments.
The Board may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances from the terms of the Zoning Ordinance in accordance with the general rules hereby laid down that equity shall be done in cases where the strict construction of the provisions of this chapter would work undue hardship. The powers and duties of the Board having been delegated to and imposed upon it by statute, the Board shall, in all cases, follow the provisions applicable to it in said N.J.S.A. 40:55D-69 et seq. 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.
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 on 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.
Appeals to the Board of Adjustment may be taken by an 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 was 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 11-4-1981 by Ord. No. 81-21-802]
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. Four 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.
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 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, 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 other 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.
Any variance from the terms of this chapter 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.
The Board of Adjustment shall have such powers as are granted by law to:
Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of the Zoning Ordinance.
Hear and decide requests for interpretation of the map or Zoning Ordinance or for decisions upon other special questions upon which such Board is authorized by the Zoning Ordinance to pass.
Variances granted to specific properties.
[Amended 7-2-1985 by Ord. No. 85-15-905]
Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions of 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 regulation in the Zoning Ordinance of Cresskill 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;
Wherein an application or appeal relating to a specific piece of property, the purposes of this chapter 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 in the Zoning Ordinance of the Borough of Cresskill; provided, however, that no variance from those departures enumerated in N.J.S.A. 40:55D-7d 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 § 38-23A(4) of this chapter.
In particular cases and for special reasons, grant a variance to allow departure from the Zoning Ordinance of the Borough of Cresskill 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 pertaining solely to a conditional use;
An increase in the permitted floor area ratio as defined by N.J.S.A. 40:55D-4;
An increase in the permitted density as defined by N.J.S.A. 40:55D-4 except that with respect to an application for a variance from the density requirements for a detached one- or two-dwelling unit building on an isolated undersized lot, or on a lot resulting from a minor subdivision, such application shall be made pursuant to § 38-7H. A variance under this subsection shall be granted only by affirmative vote of at least 2/3 of the full authorized membership of the Board.
No variance or other relief may be granted under the provisions of this section unless such variance or other relief can be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and Zoning Ordinance. Any application under any subsection of this section may be referred to any appropriate person or agency, including the Planning Board, for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.
The Zoning Board of Adjustment shall, in addition to the powers specified in § 38-23 of this chapter, 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-26, 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 Article 6 of Chapter 291, of the Laws of 1975, or conditional use approval, pursuant to N.J.S.A. 40:55D-67, whenever the Board is reviewing an application for approval of a use variance pursuant to § 38-23A(4) of this chapter.
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.