Pursuant to N.J.S.A. 40:55D-69, the Zoning Board of Adjustment, as heretofore established, is hereby continued. The Board shall consist of seven regular members and two alternate members, all of whom shall be residents of the Borough and appointed by the Mayor, with the advice and consent of the Municipal Council.
Alternate members shall be designated at the time of appointment as "Alternate No. 1" and "Alternate No. 2." 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. Participation of alternate members shall not be deemed to increase the size of the Zoning Board of Adjustment established by ordinance pursuant to N.J.S.A. 40:55D-69.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
The terms of the members first appointed under this chapter 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 alternate member shall exceed four years and that the initial term of no alternate member shall exceed two years. Thereafter, the term of each regular member shall be four years, and the term of each alternate member shall be two years. No member may hold any elective office or position under the municipality.
A member may, after public hearing if he requests it, be removed by the governing body for cause. A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
A. 
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. Whenever any such member shall disqualify himself from acting on a particular matter, he shall not continue to sit with the Board on the hearing side of such matter nor participate in any discussion or decision related thereto.
B. 
If the Board of Adjustment lacks a quorum because any of its regular or alternate members are prohibited from acting due to a conflict, Class IV members of the Planning Board shall be called upon to serve, for that matter only, as temporary Board of Adjustment members. They shall be called to serve in order of seniority of continuous service, until a quorum is reached. Where members have equal seniority, the Chairman of the Board shall choose the order in which they are called.
When any hearing before a Zoning Board of Adjustment shall carry over two or more meetings, a member of the Board who was absent for one or more of the meetings shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings; provided, however, that such Board member has available to him a transcript or recording of the meeting(s) from which he was absent and certifies in writing to the Board that he has read such transcript or listened to such recording.
The Zoning Board of Adjustment is authorized to adopt bylaws and such other rules and regulations governing its procedural operation, which bylaws, rules and regulations shall be consistent with the provisions of this chapter and N.J.S.A. 40:55D-1 et seq. 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 either a member of the Board of Adjustment or a 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.
A. 
The Board of Adjustment shall have the power 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 officer based on or made in the enforcement of the zoning regulations.[1]
[1]
Editor's Note: See Part 4, Zoning.
(2) 
Hear and decide, in accordance with the provisions of the zoning regulations, requests for interpretation of the Zoning Map or zoning regulation or for decisions upon other special questions upon which such Board is authorized to pass by any zoning regulation or Official Map in accordance with this chapter.
(3) 
Variance from application of zoning provisions.
(a) 
Grant, by majority vote, a variance from the strict application of the zoning provisions of this chapter:
[1] 
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 zoning provisions of this chapter would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the developer of such property.
[2] 
Where, in an application or appeal relating to a specific piece of property, the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning provisions of this chapter and the benefits of the deviation would substantially outweigh any detriment.
(b) 
No variance under this Subsection A(3) shall be granted, however, from those departures enumerated in Subsection A(4), just below. If the proposed development requires a subdivision, site plan or conditional use approval by the Planning Board but not a variance pursuant to N.J.S.A. 40:55D-70d, the request for a variance under these circumstances shall be acted upon by the Planning Board.
(4) 
In particular cases and for special reasons, grant a variance to allow departure from the zoning regulations of this chapter to permit a use or principal structure in a district restricted against such use or principal structure; an expansion of a nonconforming use; a deviation from a specification or standard (pursuant to N.J.S.A. 40:55D-67) pertaining solely to a conditional use; an increase in a permitted floor area ratio (as defined in N.J.S.A. 40:55D-4); an increase in a 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-dwelling-unit buildings which lot or lots are either isolated undersized lots or lots resulting from a minor subdivision; or a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. Such variance shall be granted only by affirmative vote of at least five members of the Board.
(5) 
Give direction pursuant to N.J.S.A. 40:55D-34, for issuance of a permit for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area reserved on an Official Map.
(6) 
Give direction pursuant to N.J.S.A. 40:55D-36 for issuance of a permit for a building or structure not related to a street.
(7) 
Grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision or site plan approval pursuant to Part 3, Subdivision and Site Plan Review, or conditional use approval pursuant to Article XXIV whenever the Board of Adjustment is reviewing an application for approval of a variance pursuant to Subsection A(4) above. In reviewing said subdivision or site plan, the Board of Adjustment shall follow the same procedures and be guided by the same standards as the Planning Board as provided in Part 3, Subdivision and Site Plan Review, of this chapter and, to that end, may establish a Subdivision and Site Plan Committee to function in the same manner as the Subdivision and Site Plan Committee of the Planning Board.
B. 
No variance or other relief may be granted under the terms of Subsection A(1) through (4) 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 regulations.
The Board of Adjustment shall, at least once a year, review its decisions on applications and appeals for variances and prepare and adopt by resolution a report of its findings on Zoning Ordinance provisions which were the subject of variance requests and its recommendations for zoning ordinance amendments or revision, if any. The Board of Adjustment shall send copies of the report and resolution to the governing body and Planning Board.
A. 
Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of any municipal building or zoning official based on or made in the enforcement of the zoning regulations or the Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal with the official from whom the appeal is taken, together with the filing of three copies of said notice of appeal with the Secretary of the Board of Adjustment. Said notice of appeal shall specify the grounds of such appeal. The official from whom the appeal is taken shall immediately transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
B. 
A developer may file an application for development with the Board of Adjustment for action under any of its powers without prior application to any municipal building or zoning official. Applications addressed to the original jurisdiction of the Board of Adjustment shall be filed with the administrative officer in accordance with the filing procedures of this chapter. At the time of filing the appeal or 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 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.
A. 
The Board of Adjustment shall render a decision not later than 120 days after the date that an appeal is taken from the decision of an administrative officer or not later than 120 days after the date of the submission of a complete application for development to the Board of Adjustment pursuant to § 415-61 of this chapter.
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. 
Whenever an applicant for development requests relief pursuant to § 415-39A(7), 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 Board or within such further time as may be consented to by the applicant. Failure of the Board of Adjustment to act within the period prescribed shall constitute approval of the application, and a certificate of the Secretary of the Board as to the failure of the Board of Adjustment to act shall be issued on request of the applicant, and it 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.
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.
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 whose action 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 other than by an order of the Superior Court upon notice to the officer from whom the appeal is taken and on due cause shown.
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 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.
An application under this section may be referred to any appropriate person or agency, including the Planning Board, pursuant to N.J.S.A. 40:55D-26, for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.
The final disposition of any matter by the Board shall require the concurring vote of a majority of a quorum of its members except as provided in § 415-39A(4).
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, unless otherwise limited by the terms of the variance as originally approved by the Board of Adjustment, 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 or unless extended by the Board of Adjustment upon the showing of good cause.
Any interested party may appeal the decision of the Board of Adjustment granting approval to an application for development pursuant to N.J.S.A. 40:55D-70d to the Borough Council. Such appeal shall be made in accordance with the provisions of N.J.S.A. 40:55D-17.