[Adopted 1-1-1982 as Sec. 2-24 of
the 1982 Recodification]
[Amended 10-20-2015 by Ord. No. 2015-23]
A.
The Zoning Board of Adjustment shall consist of seven
residents of the Borough of East Rutherford, each to be appointed
by the Mayor with the consent of the Council to serve for a term of
four years from January 1 of the year of their appointment.
B.
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.
C.
In addition to the regular members, there shall be
not more than two alternate members of the Zoning Board of Adjustment.
Alternate members shall be designated at the time of appointment as
“Alternate No. l” and “Alternate No. 2.”
D.
The terms
of the alternate members shall be for two years, except that the terms
of the alternate members shall be such that the term of not more than
one alternate member shall expire in any one year, and provided further
that in no instance shall the terms of the alternate members first
appointed exceed two years.
E.
A vacancy
occurring otherwise than by expiration of term shall be filled by
the appointing authority for the unexpired term only.
F.
No member
or alternate member of the Zoning Board of Adjustment may hold any
elective office or position under the municipality.
G.
No member
or alternate member shall be permitted to act on any matter in which
he has, either directly or indirectly, any personal or financial interest.
H.
A member
or alternate member may, after public hearing if he requests one,
be removed by the governing body for cause.
I.
Alternate
members may participate in all matters but may not vote except in
the absence or disqualification of a regular member of any class.
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, the alternate with the
lower number designation shall vote.
The Board of Adjustment shall elect a Chairman
and Vice Chairman from its members and shall also select a Secretary,
who may be either a Board of Adjustment member or municipal employee.
There is hereby created the Office of Attorney
to the Zoning Board of Adjustment. The Zoning Board of Adjustment
may annually appoint, fix the compensation of or agree upon the rate
of compensation of the Zoning Board of Adjustment Attorney, provided
that it does not exceed the amount appropriated by the governing body
for its use. The Zoning Board of Adjustment Attorney 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 article. In the issuance of subpoenas, administration of oaths
and taking of testimony and 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 accord with N.J.S.A. 40:55D-69 et seq., and amendments and supplements
thereto, and with the provisions of this article.
B.
It is further the intent of this article 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 article 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 article 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 article 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
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.
A.
Appeals to the Board of Adjustment may be taken by
any interested party affected by any decision of the Building Subcode
Official. Each appeal shall be taken within the 20 days prescribed
by statute by filing a notice of appeal with the officer from whom
the appeal was taken, together with nine copies of said notice, with
the administrative officer. 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.
B.
Completed 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
of the Borough of East Rutherford. Nine copies of the completed application
shall be filed. At the time of filing the appeal or completed application,
but in no event less than 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 article or any rule of
the Board of Adjustment. The applicant shall obtain all necessary
forms from the Secretary of the Board of Adjustment. The Secretary
of the Board of Adjustment shall inform the applicant of the steps
to be taken to initiate proceedings and of the regular meeting dates
of the Board.
C.
An appeal to the Board of Adjustment shall stay 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 case, the proceeding 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 above-mentioned power, the
Board of Adjustment may, in conformity with the provisions of N.J.S.A.
40:55D-1 et seq. or amendments thereto or subsequent statutes applying
thereto, 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.
Any variance hereafter granted by the Board
of Adjustment permitting the erection or alteration of any structure
or structures or permitting 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 nine
months from the date of entry 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.
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 error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of Chapter 389, Zoning, of the Land Use Code of the Borough of East Rutherford.
(2)
Hear and decide requests for interpretation of the map or Chapter 389, Zoning, of the Land Use Code of the Borough of East Rutherford, or for decisions upon other special questions upon which such Board is authorized by Chapter 389, Zoning, of the Land Use Code of the Borough of East Rutherford, 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 by reason of other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation in Chapter 389, Zoning, of the Land Use Code of the Borough of East Rutherford would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, to grant, upon an application or an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship, including a variance for a conditional use; 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; and provided further that the proposed development does not require approval by the Planning Board of subdivision, site plan or conditional use in conjunction with which the Planning Board shall review a request for a variance pursuant to N.J.S.A. 40:55D-60.
(4)
In particular cases and for special reasons, grant
a variance to allow departure from regulations pursuant to N.J.S.A.
40:55D-2 to 40:55D-68, including but not limited to allowing a structure
or use in an area restricted against such structure or use, but only
by affirmative vote of at least five members.
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 Chapter 389, Zoning, of the Land Use Code of the Borough of East Rutherford. 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 Board of Adjustment shall render its decision
not later than 120 days after the date:
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.
A.
The Zoning Board of Adjustment shall, in addition to the powers specified in § 305-22 of this article, have power given by law to:
(1)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-35
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, pursuant to N.J.S.A. 40:55D-36.
(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.
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 or site plan approval pursuant to 40:55D-67, whenever the proposed development requires approval by the Board of Adjustment of a variance pursuant to § 305-22A(4) of this article.
(1)
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.
(2)
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 Chapter 389, Zoning, of the Land Use Code of the Borough of East Rutherford. The number of votes of Board members required to grant any such subsequent approval shall be as otherwise provided in N.J.S.A. 40:55D-1 et seq. for the approval in question, and the special vote pursuant to the aforesaid § 305-22A(4) of this article shall not be required.
C.
Whenever an application for development requests relief pursuant to § 305-22A(3), the Board of Adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the administrative officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate, consecutive applications, such provision shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise provided in this article. Failure of the Board of Adjustment to act within the period prescribed shall constitute approval of the application, and a certificate of the administrative officer as to the failure of the Board of Adjustment to act shall be issued at the request of the applicant and shall be sufficient in lieu of the written endorsement or other evidence of approval herein required and shall be so accepted by the county recording officer for purposes of filing subdivision plats.
D.
Whenever review or approval of the application by
the County Planning Board is required by N.J.S.A. 40:27-6.3, in the
case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a site
plan, the Municipal Board of Adjustment shall condition any approval
that it grants upon timely receipt of a favorable report on the application
by the County Planning Board or approval by the County Planning Board
by its failure to report thereon within the required time.
[Amended 9-16-2014 by Ord. No. 2014-05]
For purposes of this article, the administrative officer shall
be the Zoning Board of Adjustment Secretary.
