A.
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]
B.
No member of the Zoning Board of Adjustment may hold
any elective office or position under the municipality.
C.
A vacancy occurring otherwise than by expiration of
term shall be filled for the unexpired term only.
D.
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.
A.
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.
B.
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.
C.
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.
A.
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]
B.
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]
C.
The following shall be the fees for variance applications
to the Zoning Board:
(2)
Four-family to ten-family dwelling units: $200.
(3)
Multiple-family in excess of 10 units: $500.
(4)
Business, commercial and industrial buildings on land
less than two acres: $200.
(5)
Business, commercial and industrial buildings on land
of two acres or more: $500.
[1]
Editor's Note: This ordinance also provided
for the renumbering of former Subsection C as subsection D.
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.
E.
Completed application.
[Added 11-19-1984 by Ord. No. 26-84]
(1)
A completed application filed with the Board of Adjustment
shall consist of the following items:
(a)
A completed application form.
(b)
The fee required for specific application.
(c)
A survey of the premises (if construction is
involved in the application) presented to the administrative officer
10 days prior to hearing.
(d)
A preliminary drawing of proposed construction
presented to the administrative officer 10 days prior to hearing.
(e)
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.
(f)
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.
(g)
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.
(2)
All requirements of the New Jersey Statutes must be
complied with, including notice to the proper state and county agencies.
(3)
Any corporation applying to the Zoning Board of Adjustment
must be represented by counsel at the public hearing of the application.
(4)
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,[1] 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.
[1]
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.
A.
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.
B.
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]
A.
The Board of Adjustment shall have such powers as
are granted by law to:
(1)
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.
(2)
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.
(3)
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.
(4)
Particular cases and special reasons.
(a)
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:
[1]
A use or principal structure in a district restricted
against such use or principal structure.
[2]
An expansion of a nonconforming use.
[3]
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.
[4]
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).
[5]
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.
(b)
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.
B.
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.
A.
The Zoning Board of Adjustment shall, in addition to the powers specified in § 26-20 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 structure or building not related to a street.
B.
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]
A.
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.
B.
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.
C.
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]
A.
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.
B.
The provisions of N.J.S.A. 40:55D-17 shall apply to
the procedures of such appeal to the Mayor and Council.
C.
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.
D.
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.
