[Amended 1-31-1990 by Ord. No. 1511; 12-1-1993 by Ord. No. 1595; 2-1-1995 by Ord. No. 1614]
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 Hawthorne, appointed by the Mayor with the advice and consent of the Municipal Council, to serve for terms of four years from January 1 of the year of their appointment. The terms of the members, to the greatest practicable extent, shall be distributed evenly so that no more than two members shall be appointed in the same year. 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.
[Added 9-6-1978 by Ord. No. 1315; amended 2-20-1980 by Ord. No. 1339; 1-31-1990 by Ord. No. 1511; 12-1-1993 by Ord. No. 1595; 2-1-1995 by Ord. No. 1614]
There shall be two alternate members appointed by the Mayor, with the advice and consent of the Municipal Council, to serve for terms of two years; provided, however, that the term of only one alternate member shall expire in any one year. Such alternate members shall be designated by the Municipal Council at the time of appointment as "Alternate No. 1" and "Alternate No. 2." Alternate members may participate in discussions of any proceedings, but may not vote except in the absence or disqualification of a regular member. In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote.
[Amended 12-1-1993 by Ord. No. 1595; 2-1-1995 by Ord. No. 1614]
The Mayor shall appoint a Zoning Administrator, who shall do and perform all of the duties and have the authority of the administrative officer described in the Municipal Land Use Law, P.L. 1975, c. 291, and all amendments thereto (N.J.S.A. 40:55D-1 et seq.) and as may be further provided in this chapter and any other ordinances of the Borough. The Zoning Administrator shall serve for a term of four years and until a successor shall be appointed and qualify. The Zoning Administrator shall be paid such salary as may be fixed by the Director of the Department of Administration, provided that the same shall not exceed the amount adopted in the municipal budget or provided in the annual Salary Ordinance for such office.
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, but the amount of compensation shall not exceed the amount adopted in the municipal budget or provided by ordinance for such office.
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 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 P.L. 1975, c. 291, (N.J.S.A. 40:55D-1 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.
Appeals to the Board of Adjustment may be taken by any interested party. Each appeal shall be taken within the 65 days prescribed by the statute by filing a notice of appeal with the officer from whom the appeal was taken, together with 15 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 12-1-1993 by Ord. No. 1595]
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. Fifteen copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than 15 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.
[Amended 12-1-1993 by Ord. No. 1595]
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.
The applicant shall provide the information set forth on the checklist, a copy of which is attached hereto at the end of this chapter, and which is hereby approved and adopted as the checklist referred to in N.J.S.A. 40:55D-10.3.
[Added 12-1-1993 by Ord. No. 1595]
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 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.
Editor's Note: Original § 34-26, Powers, as amended 2-20-1980 by Ord. No. 1339, was deleted 12-1-1993 by Ord. No. 1595.
[Amended 2-20-1980 by Ord. No. 1339]
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 N.J.S.A. 40:55D-72b; provided, however, that in cases where the developer has requested subsequent consideration of an application for subdivision, site plan or conditional use approval, the time within which a decision must be rendered on any such subsequent approval shall be the same time required for Planning Boards to act upon the same applications. Such time period will begin to run upon the filing of a complete application or upon the final decision granting the variance, whichever occurs later.
Failure of the Board to render a decision within the required time period or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.