A.
A Board of Adjustment is hereby established pursuant
to N.J.S.A. 40:55D-69 et seq. consisting of seven regular members
and two alternate members, designated as Alternate No. 1 and Alternate
No. 2, to serve as provided by statute. The seven regular and two
alternate members shall be appointed by the City Council. The regular
members and alternate members shall be residents of the City of Passaic
at the time of their appointments and shall remain bona fide residents
during the term of their appointments. No member may hold any elective
office or position under the municipality. No member of the Board
of Adjustment shall be permitted to act on any matter in which he
has, either directly or indirectly, any personal or financial interest.
A member may, after public hearing, if he requests it, be removed
by the governing body for cause. 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. All members shall be
deemed unclassified employees of the City of Passaic and shall receive
a salary of $1 per year and no other compensation or benefit, either
directly or indirectly.
B.
Two additional alternate members of the Board of Adjustment
shall be appointed to the Board in the same manner as the current
alternate members. The members shall be designated as Alternate 3
and Alternate 4. The alternates are appointed for two-year terms,
and no more than two terms of alternates shall expire in any one year.
The terms of the members first appointed under
this Act shall be so determined that, to the greatest practicable
extent, the expiration of such terms shall be distributed, in the
case of regular members, evenly over the first four years after their
appointment and in the case of alternate members, evenly over the
first two years after their appointment, provided that the initial
term of no regular members shall exceed four years; and the term of
each alternate member shall be two years.
[Amended 2-8-2011 by Ord. No. 1859-11]
A.
A vacancy
occurring otherwise than by expiration of term shall be filled for
the unexpired term only. Any member of the Zoning Board of Adjustment
who shall, during a calendar year, be absent for three consecutive
regularly scheduled meetings of the Board to which he or she has been
appointed shall be subject to removal by the City Council in accordance
with the provisions of this section. The Secretary to the Zoning Board
of Adjustment shall be required to report to the Council three consecutive
absences in the calendar year by any Board member, and when requested
to do by the Council, the Board member who missed three consecutive
regularly scheduled meetings during the calendar year shall submit
a written explanation for each of his or her absences. Any Board member
may also be removed by the Council for cause in accordance with the
provisions of this section.
B.
In the
event that the Council determines preliminarily that there have been
three consecutive absences from regularly scheduled meetings by any
appointed Board member, and that the absences are without "reasonable
justification" as defined herein, or that cause otherwise exists for
the removal of such Board member, the Council shall have the right
to introduce a resolution to institute removal proceedings. No member
of the Board shall be removed based on his or her absence at a regularly
scheduled meeting where there was a reasonable justification for the
absence. "Reasonable justification" for absence shall mean illness
of the Board member or immediate family member of the Board member
and/or exigent business or personal responsibilities which render
it impracticable for the Board member to be in attendance. Where the
Council has instituted such removal proceedings, the proceedings shall
be as follows:
(1)
A written
notice of intention to remove shall be mailed to the Board member
at his or her home address. The notice shall advise the Board member
as to a right to a hearing before the City Council; as to the right
to be represented by counsel; and as to the right to cross-examine
witnesses and present witnesses on his or her behalf. The notice shall
set forth a date for a proposed hearing and shall notify the Board
member that if he or she wishes to contest the removal, a written
notice of intention to contest must be submitted to the City Clerk
at least 10 days prior to the scheduled hearing. The notice to the
Board member shall list the dates of the regularly scheduled meetings
from which the Board member is alleged to have been absent or shall
otherwise set forth the factual basis for such removal.
(2)
The
hearing shall be conducted by the City Council in Council chambers.
The Board member shall have a right to participate in the proceedings,
either personally or by counsel, and shall have a right to examine
witnesses and present evidence. Upon conclusion of all the evidence,
the City Council shall make findings of fact and conclusions as to
whether the Board member shall be removed.
C.
The Secretary
for the Zoning Board of Adjustment shall forward the minutes of all
Board meetings to the City Council once approved by the Zoning Board
of Adjustment.
The Board of Adjustment shall elect a Chairman
and Vice Chairman from its members and select a Secretary who may
or may not be a member of the Board of Adjustment or a municipal employee.
The Board of Adjustment may 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.
A.
Basic powers. The powers of the Board of Adjustment
shall be in accordance with N.J.S.A. 40:55D-1 et seq. and amendments
and supplements thereto, and with the provisions of this Part 1. The
Board of Adjustment shall have such powers as are granted by law to:
(2)
Hear and decide requests for interpretations 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.
(3)
Variances:
(a)
Where, by reasons 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 pursuant to the Zoning Ordinance and N.J.S.A. 40:55D-62
through 55D-68 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 release such difficulties or hardship.
(b)
Where, in an application or appeal relating to a specific piece of property, the purposes of this Act 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 of the Zoning Ordinance; 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 power to review a request for a variance pursuant to N.J.S.A. 40:55D-60a.
(4)
In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to Article 8 of N.J.S.A. 40:55D-1 et seq. 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 pursuant to N.J.S.A. 40:55D-67 pertaining solely to a conditional use; an increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4; and 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-family dwelling unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision. A variance under this subsection shall be granted only by affirmative vote of at least five members of the Board. No variance or other relief may be granted under the terms of this Subsection A(4), unless such variance or other relief may 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. An application under this subsection 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 Board of Adjustment shall act.
B.
Additional powers. Pursuant to N.J.S.A. 40:55D-76, the Board of Adjustment shall in addition to the powers specified in § 29-13A of this article have power given by law to:
(1)
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.
(2)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36
for a building or structure not related to a street.
(3)
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 N.J.S.A. 40:55D-37 through 55D-59, whenever the Board is reviewing an application for approval of a use variance pursuant to Article II, § 29-13A(4) of this Part 1 or whenever the Board is reviewing an application for approval of a conditional use pursuant to N.J.S.A. 40:55D-67. 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 by the Board of Adjustment. No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of 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 Part 1 and the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., for the approval in question, and the special vote pursuant to the aforesaid Subsection A(4) of § 29-13 shall not be required.
The Board shall adopt such rules and regulations
as may be necessary to carry into effect the provisions and purposes
of this Part 1 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.
A.
Decisions of an administrative officer. Appeals to
the Board of Adjustment may be taken by an interested party affected
by any decision of an 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 with the officer from whom the appeal
is taken specifying the grounds of such appeal. The officer from whom
the appeal is taken shall immediately transmit to the Board 10 copies
of all the papers constituting the record upon which the action appealed
from was taken.
B.
Development applications. 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. 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 Board of Adjustment, and thereafter follow the application procedures set forth in Article IV of this Part 1. The applicant shall obtain all necessary forms from the administrative officer. The administrative officer shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board.
C.
Stay of proceedings. 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 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 of New Jersey on application or notice to
the officer from whom the appeal is taken and on due cause shown.
In exercising the powers outlined in this article,
the Board of Adjustment 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 the powers
of the administrative officer from whom the appeal is taken.
The Board of Adjustment may refer any application
to any appropriate person or agency for its report, provided that
such reference shall not extend the period of time within which the
Board of Adjustment shall act.
Any variance from the terms of this Part 1 hereafter
granted by the Zoning 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 entry
of the judgment or determination of the Board of Adjustment; except,
however, in the case of a use variance which also involves a subdivision
or site plan, approval of the variance shall extend for the full period
of preliminary approval, i.e., three years, and 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.
