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 City of Hackensack appointed by the Mayor and Council to serve for terms of four years from February 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 chapter shall, however, be construed to affect the terms of any present members of the Zoning Board of Adjustment, all of whom shall continue in office until the completion of the terms for which they were appointed. All terms shall run from January 1 of the year for which the appointment is to commence.
[Amended 3-6-1978 by Ord. No. 7-78]
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.
In addition to the regular members appointed by the Mayor and Council, the Zoning Board of Adjustment shall also consist of four alternate members. The alternate members shall be appointed by the Mayor and Council, each for a term of two years, excepting however that initially alternate No. 4 shall be appointed for one year and then alternate No. 4 shall be appointed for two-year terms thereafter. The Chairman of the Zoning Board shall designate the alternate members as "Alternate No. 1," "Alternate No. 2," "Alternate No. 3," and "Alternate No. 4," and said alternate members shall serve in rotation during the absence or disqualification of any regular member or members. It is the express intent of the Mayor and Council that two alternates’ terms shall expire every year.
[Added 10-16-1978 by Ord. No. 44-78; amended 2-6-2007 by Ord. No. 3-2007]
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 and 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.
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 proceeding 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 this chapter in accordance with the general or specific rules contained herein and with the general rule 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 c. 291, P.L. 1975, 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.
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 one copy 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 11-19-1984 by Ord. No. 26-84]
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. One copy of the application shall be filed. At the same time of filing and 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. A completed application shall be as defined in § 26-17E. 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.
[Amended 11-19-1984 by Ord. No. 26-84]
The following shall be the fees for variance applications to the Zoning Board:
[Added 9-15-1980 by Ord. No. 25-80; amended 10-19-1981 by Ord. No. 38-81]
Four-family to ten-family dwelling units: $200.
Multiple-family in excess of 10 units: $500.
Business, commercial and industrial buildings on land less than two acres: $200.
Business, commercial and industrial buildings on land of two acres or more: $500.
Editor's Note: This ordinance also provided for the renumbering of former Subsection C as subsection D.
An appeal stays all proceedings in furtherance of the action in respect to 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.
[Added 11-19-1984 by Ord. No. 26-84]
A completed application filed with the Board of Adjustment shall consist of the following items:
A completed application form.
The fee required for specific application.
A survey of the premises (if construction is involved in the application) presented to the administrative officer 10 days prior to hearing.
A preliminary drawing of proposed construction presented to the administrative officer 10 days prior to hearing.
A completed application and all requirements of this checklist fulfilled and received by the Board of Adjustment no later than 14 days prior to the meeting date, except where otherwise provided, on which the applicant wants the application listed.
Notice of hearing served on all property owners within 200 feet of the premises within 10 days before the hearing date. This is done in accordance with the instruction sheet given to the applicant.
A signed and dated affidavit of service, together with all certified slips and any signatures obtained indicating that notice of hearing has been sent to all necessary parties filed with the administrative officer not later than 48 hours prior to hearing date.
All requirements of the New Jersey Statutes must be complied with, including notice to the proper state and county agencies.
Any corporation applying to the Zoning Board of Adjustment must be represented by counsel at the public hearing of the application.
Every application must be accompanied by proof that no taxes or assessments for local improvements are due or delinquent on the subject property of the application. If taxes or assessments are delinquent, any relief granted shall be conditioned on prompt payment of the taxes or assessments or the making of adequate provision for the payment thereof in such manner that the City will be protected.
In exercising the above-mentioned power, the Board of Adjustment may, in conformity with the provisions of c. 291, P.L. 1975, or amendments thereto or subsequent statutes applying, reverse or affirm, wholly or partly, or 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 is taken.
Editor's Note: See N.J.S.A. 40:55D-70.
[Amended 12-19-1988 by Ord. No. 27-88]
Any variance from the terms of this chapter heretofore or hereafter granted by the Board of Adjustment permitting the creation or alteration of any structure or structures or permitting a specified use of any premises shall expire by limitation within one year from the date of publication of the notice of the judgment or determination of the Board of Adjustment unless the proposed building or structure is actually commenced, with the foundations or footings completed.
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, when permitted by this chapter, or to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding.
If an applicant has received a variance pursuant to this chapter but is prevented from obtaining a construction permit by the imposition of the sewer connection ban pursuant to N.J.A.C. 7:14A-12.21, as issued by the New Jersey Department of Environmental Protection on August 18, 1988, then the original time limitation of said variance shall be tolled from August 18, 1988, to the expiration of the original variance, which time shall be added from the date of termination of the sewer connection ban. It is the intent of this section to provide an applicant with 12 unrestricted months to implement his permit.
[Amended 11-19-1984 by Ord. No. 26-84]
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 an 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 Zoning Map or Zoning Ordinance or for decisions upon other special questions upon which such Board is authorized by the Zoning Ordinance to pass.
Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property or by reason of exceptional topographic conditions or 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 Land Use Chapter of the City of Hackensack 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; or where in an application or appeal relating to a specific piece of property the purposes of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., would be advanced by a deviation from the Land Use Ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to Article 8 of the Municipal Land Use Law (N.J.S.A. 40:55D-62 et seq.); 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 § 26-7 of this chapter.
Particular cases and special reasons.
In particular cases and for special reasons, grant a variance to allow departure from the Land Use chapter of the City of Hackensack 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 Section 54 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-67), pertaining solely to a conditional use.
An increase in the permitted floor area ratio as defined in Section 3.1 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-4).
An increase in the permitted density as defined in Section 3.1 of P.L. 1975, c. 291 (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-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 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 will not substantially impair 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 § 26-20 of this Article, 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 structure or building 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 approval pursuant to Article 6 of c. 291, P.L. 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 Article II, § 26-20A(4), of this chapter.
[Amended 11-19-1984 by Ord. No. 26-84]
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 not later than 120 days after the submission of a complete application, as defined in § 26-17E, 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.
If the Board of Adjustment fails to adopt a resolution or memorializing resolution of its decision, any stated party may apply to the Superior Court in a summary manner for an order compelling the Board of Adjustment to reduce its findings and conclusions to writing within a stated time, and the cost of the application, including attorneys' fees, shall be assessed against the municipality.
[Amended 11-19-1984 by Ord. No. 26-84]
An appeal to the Zoning Board of Adjustment may be taken by an interested party affected by any decision of the administrative officer of the municipality based on or made in the enforcement of the Zoning Ordinance or Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal in the manner set forth in Article II, § 26-17A, of this chapter and in accordance with the provisions of Article 9 of the Municipal Land Use Law of 1975.
[Amended 11-19-1984 by Ord. No. 26-84; 9-5-1989 by Ord. No. 23-89]
Pursuant to N.J.S.A. 40:55D-17, any interested party may appeal to the Mayor and Council any final decision of the Zoning Board of Adjustment approving an application for development pursuant to N.J.S.A. 40:55D-70d. Such appeal shall be made within 10 days of publication of such final decision, pursuant to N.J.S.A. 40:55D-10, by serving the City Clerk in person or by certified mail with a notice of appeal, specifying the grounds thereof and the name and address of the appellant and the name and address of his attorney, if represented. The filing fee for such notice of appeal shall be $50. The cost of the transcript of the subject proceeding of the Zoning Board of Adjustment required to be provided to the Mayor and Council shall be borne by the appellant.
The provisions of N.J.S.A. 40:55D-17 shall apply to the procedures of such appeal to the Mayor and Council.
Nothing in this section shall be construed to restrict the right of any party to obtain a review by any court of competent jurisdiction, according to law.
With the exception of the foregoing optional appeal to the Mayor and Council, an appeal from any decision of the Zoning Board of Adjustment shall be made to the Superior Court within 45 days of the decision of the Zoning Board of Adjustment. The date of the decision shall be the date of the publication of the final decision of the Zoning Board of Adjustment.