A.
The Board of Adjustment heretofore established pursuant
to the provisions of Chapter 291 of the Laws of New Jersey 1975 shall
continue as the Board of Adjustment for the Town of West New York
with all the powers prescribed by law and as herein described.
B.
The Board of Adjustment shall consist of seven members
and two alternates. No member or alternate shall hold any elective
office or position in the town. The terms of the members first appointed
under this article 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 such member shall be four years. The Board of Commissioners shall
determine the compensation that the members of the Board shall receive.
[Amended 11-20-2000 by Ord. No. 22/00]
C.
The Board may, within the limit of appropriations
made available to it by the Board of Commissioners, employ a Secretary,
legal counsel and such other personnel as may be required for the
conduct of its business.
D.
The Board of Adjustment shall adopt such rules and
regulations as it may deem necessary to interpret and carry into effect
the provisions of this chapter. The Board shall elect a Chairman from
among its members, and meetings of the Board shall be held at the
call of the Chairman. The Board shall also select a Vice Chairman,
who, in the absence of the Chairman, shall act as Chairman.
E.
Meetings of the Board of Adjustment shall be held
at the call of the Chairman and at such other times as the Board may
determine. The Chairman or the Acting Chairman shall have power to
issue subpoenas for the attendance of witnesses and the production
of records and may administer oaths and take testimony. All regular
meetings of the Board of Adjustment shall be open to the public.
F.
The Board of Adjustment shall keep minutes of its
proceedings, showing the vote of each member upon each question or,
if absent or failing to vote, indicating such fact, and shall keep
records of its examinations and other official actions, all of which
shall immediately be filed in the office of the Board and shall be
a public record. A quorum shall consist of four members of the Board
and the concurring votes of four members of the Board shall be required
to effect any action of the Board.
G.
The Board of Adjustment shall report to the Board
of Commissioners annually, summarizing all appeals and applications
made to it since its last previous report and summarizing its decisions
on such appeals and applications. At the same time that each such
report is filed, copies thereof shall also be filed with the Mayor,
the Planning Board, the Construction Official and the Town Attorney.
H.
At intervals of not greater than 12 months, the Town
Attorney shall examine the records of the Board of Adjustment and
shall submit to said Board a written summary of his observations thereon,
including any recommendations that he may deem advisable in order
to assure full conformity with the requirements and limitations of
this chapter pertaining to the jurisdiction and functions of said
Board. Copies of such summary and recommendations shall be filed with
the Board of Commissioners, the Planning Board and the Construction
Official.
A.
The Board of Adjustment shall have all the powers
and duties prescribed by law (Chapter 291 of the Laws of New Jersey
1975[1]) and by this chapter, which are more particularly specified
as follows, provided that none of the following provisions shall be
deemed to limit any power of the said Board that is conferred by law:
(1)
Conditional uses, interpretations and special questions.
The Board shall have the power to:
(a)
Hear and decide requests for use and hardship
variances.
(b)
Hear and decide requests for interpretation of the Zoning Map.
(c)
Render decisions upon other special questions
upon which such Board is authorized to pass.
(2)
Hardship variances. Where, by reason of exceptional
narrowness, shallowness or shape of a specific piece of property or
by reason of exceptional topographic conditions or by reason of other
extraordinary and exceptional situation or condition of such piece
of property, the strict application of this chapter would result in
peculiar and exceptional practical difficulties to or exceptional
and undue hardship upon the owner of such property, the Board may
authorize, upon an appeal relative to such property, a variance from
such strict application so as to relieve such difficulties or hardship;
provided, however, that no variance shall be granted under this subsection
to allow a structure or use in a district restricted against such
structure or use.
(3)
Use variances. The Board after making findings may
recommend in particular cases and for special reasons to the Board
of Commissioners of the Town of West New York the granting of a variance
to allow a structure or use in a district restricted against such
structure or use.
(4)
Appeals. The Board shall have the power 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 this chapter.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
B.
The Board of Adjustment shall also have the following
specific additional powers:
(1)
To refer applications before the Board to any appropriate
person, agency, board, commission, committee, authority or other instrumentality
for review and recommendations.
(2)
To direct the issuance of a building permit for those
purposes enumerated in N.J.S.A. 40:55D-34, 40:55D-35 and 40:55D-36
upon such terms and conditions as contained therein and which will
permit and encourage the health, morals, safety and general welfare
of the public.
(3)
Where an original application requires a use variance
or variances on more than one lot for minimum lot area requirements
on a major or minor subdivision application and this chapter requires
the applicant to also obtain subdivision, site plan and/or conditional
use approval, the Board of Adjustment may grant said subdivision,
site plan and/or conditional use approval in conjunction with said
variance, after referring the application to the Planning Board for
review by the appropriate administrative agencies normally involved
with said reviews pursuant to this chapter and reviewing the Planning
Board's review and recommendation report.
(4)
To review, recommend, report on or decide matters
at formal or informal public meetings, referred to the Board by other
administrative agencies, as permitted or required by other ordinances
or inherent powers of the Town of West New York.
The Board of Adjustment may, after due notice
and public hearing, permit the temporary occupancy and use of a structure
in any district for a purpose that does not conform with the regulations
for that district. Such occupancy and use shall be subject to any
reasonable conditions and safeguards which the Board may impose to
minimize any injurious effect upon the neighborhood or to protect
contiguous property. Such approval and permit based thereon shall
not be valid for more than 12 months, but may be renewed not more
than once for another period of 12 months.
The Board of Adjustment may, after due notice
and public hearing, permit a change from one nonconforming use to
another, provided that the new nonconforming use shall be of substantially
the same character and shall have the same or less nuisance characteristics
as the previous nonconforming use and shall conform to all other provisions
of this chapter for nonconforming uses.
A.
Action by Board of Adjustment; conditions of grant.
In any case where the Board of Adjustment is empowered to approve
a conditional use or authorize a variance, said Board may impose such
conditions or restrictions as are deemed necessary in the specific
case in order to minimize the effects of the use or variance upon
other property in the neighborhood, assure a harmonious arrangement
of uses or implement the intent and purpose of this chapter. Any such
conditions or restrictions shall become a part of any building permit
or certificate of occupancy thereafter issued for the premises involved.
Special conditions or limitations may include but are not limited
to any of the following:
(1)
The location of principal and accessory buildings.
(2)
The limitation of signs or advertising devices, including
number, size, location and type of illumination.
(3)
The limitation of amount, location, intensity and
direction of exterior illumination.
(4)
The amount, location and improvement of off-street
parking and loading space.
(5)
The control of the number and design of the means
of access and circulation to and within the premises.
(6)
The type, location and design of drainage and drainage
structures.
(7)
The grading and the location and type of retaining
walls or structures.
(8)
Landscaping, screening, fencing and walls, including
the location and type of planting and fencing required for screening
purposes.
(9)
Hours of operation.
(10)
Structural changes, including the installation
of storefronts.
(11)
Control or elimination of smoke, dust, gas,
noise, vibration, odor or fire or health hazards, or any other deleterious
effects of a land use on the environment.
(12)
Other conditions found by the Board to be necessary,
which may include traffic studies, environmental impact or other technical
studies by qualified professionals at the expense of the applicant.
B.
Compliance with conditions imposed upon granting application.
Whenever the Board of Adjustment, in passing upon an application,
imposes conditions upon the granting of said application, unless a
specific time is fixed by the Board of Adjustment within which time
the conditions must be complied with, then such conditions must be
complied with within 60 days after the date of the granting of said
application. If such conditions are not so complied with, then the
granting of said application shall become null and void, and all records
of said application shall be endorsed to indicate that said application
was denied by the Board of Adjustment. After said application becomes
null and void, it shall be the duty of the Construction Official to
examine the premises in question to ascertain whether there may be
thereon any violations of this chapter. If such violation exists,
the Construction Official shall cause a summons to be issued.
A.
The powers and duties of the Board of Adjustment shall
be exercised in accordance with the following procedure:
(1)
A public hearing shall be held by said Board on every
appeal and application made to it. Due notice of such hearing and
of the substance of the appeal or application shall be given by the
Board to the appellant. Upon written request of the appellant, the
town shall, within seven days, make and certify a list of names and
addresses of property owners located within 200 feet of the property
to be affected by said application to whom the applicant is required
to give notice at least 10 days prior to the time of hearing. A fee
of $10 is to be paid for this certified list.
(2)
At least five days before the date of any public hearing,
the Construction Official shall transmit to the Secretary of the Planning
Board a copy of any appeal or application, together with a copy of
the notice of such hearing. The Planning Board may submit to the Board
of Adjustment an advisory opinion on said appeal or application at
any time prior to the rendering of a decision.
(3)
(4)
Unless work is commenced and diligently prosecuted
within six months of the date of the granting of a variance or conditional
permit, such variance or conditional permit shall become null and
void.
(5)
Each appeal and application to the Board of Adjustment
shall be made by the owner of the property affected, in writing, on
forms prescribed by the Board and shall be accompanied by a fee of
$75.
(6)
Every decision of the Board of Adjustment shall be
recorded in accordance with standard forms adopted by the Board and
shall set forth the circumstances of the case and shall contain a
record of the findings on which the decision is based. Every decision
of the Board of Adjustment shall be by resolution, and each such resolution
shall be filed with the Town Clerk by case number, together with all
documents pertaining thereto.
B.
All provisions of this chapter relating to the Board
of Adjustment shall be strictly construed. The Board, as a body of
limited jurisdiction, shall act in full conformity with all provisions
of law and of this chapter and in strict compliance with all limitations
contained therein.
A.
Appeals to the Board of Adjustment may be taken by
any person aggrieved or by his agent or by an officer, board, department
or bureau of the Town of West New York affected by any decision of
the Construction Official. Such appeal shall be taken within 65 days
by filing a notice of appeal with the officer from whom the appeal
is taken specifying the grounds of such appeal. The officer from whom
the appeal is taken shall forthwith transmit to the Board of Adjustment
all the papers constituting the record upon which the appeal is taken.
B.
An application for a use permit or for any other permit
for which approval by the Board of Adjustment is required under the
terms of this chapter may be made by the owner of the property involved,
or by a lessee thereof, or by a person, firm or corporation under
bona fide contract to purchase the same.
C.
All appeals shall be in writing on forms prescribed
by the Board of Adjustment. Every appeal shall refer to the specific
provision of the chapter that is involved and shall fully set forth
the circumstances of the case and the interpretation that is claimed
on an allegation of error, the variance that is applied for and the
grounds on which it is claimed that the same should be granted or
the conditional use for which the permit is sought or any other such
information that the rules of the Board may require.
D.
An appeal stays all proceedings in furtherance of
the action in respect of which the decision appealed from was made,
unless the officer from whose action 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 the facts stated in the certificate
a stay, in his opinion, would cause imminent peril to life and property.
In such case, 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 on application upon notice to the officer
from whom the appeal is taken and on due cause shown.
E.
F.
Said applicant or appellant shall, at least 10 days
prior to the time appointed for said hearing, give notice to all owners
of property situate within or without the Town of West New York and
within 200 feet of the property to be affected by said appeal. Such
notice shall be given either by registered mail or by being served
personally at their usual place of abode if said owners are the occupants
of the property affected by such appeal. Whenever said owners are
nonresidents of the Town of West New York, such notice may be given
by sending written notice thereof by registered mail to the last known
address of the property owner or owners, as shown by the most recent
tax lists of the town. Where the owner is a partnership, service upon
any partner as above provided shall be sufficient, and where owners
are corporations, service upon any officers, as above provided, shall
be sufficient. The appellant shall by affidavit present satisfactory
proof to the Board of Adjustment at the time of the hearing that said
notices have been duly served as aforesaid. Upon the hearing any party
may appear in person, by agent or by attorney.
Unless otherwise specified by the Board of Adjustment,
a decision on any appeal or request for a variance or use permit shall
expire without notice if the applicant fails to obtain any necessary
permit from the Construction Official or to comply with the conditions
of said authorized permit within one year from the date of authorization
thereof. However, an extension may be granted by the Board of Adjustment
because of the occurrence of conditions unforeseen at the time of
the original action. Any application for extension shall be subject
to the same procedure as specified in this article for the original
issuance of the variance or use permit.
The Board of Adjustment shall transmit to the
Planning Board a copy of every appeal or application made to the Board
and shall also notify the Planning Board of the date of the hearing
thereon. If prior to the hearing the Planning Board submits to the
Board of Adjustment a recommendation that an application for a use
permit be denied or that specified conditions be prescribed in connection
with a particular variance, the Board of Adjustment shall not act
contrary to such recommendation except by majority vote.
A.
Whenever an appeal shall be taken to the Board of
Adjustment pursuant to this article, said Board shall render a decision
not later than 120 days after the date:
B.
Upon failure to do so, such appeal at the expiration
of such time shall be deemed to be decided adversely to the appellant
as though the Board had rendered a decision to that effect.
Whenever the Board of Adjustment, after hearing
all evidence presented upon an application or appeal under the provisions
of this article, denies the same or refuses to recommend to the Board
of Commissioners, said Board shall refuse to hold further hearings
on said or substantially similar application or appeal by the same
applicant, successor or assignee for a period of six months. If the
Board determines from the information supplied with a request for
a rehearing that changed conditions have occurred relating to the
promotion of the public health, safety, convenience, comfort, prosperity
and general welfare, the appeal or application may be considered within
said period.
