[Amended 10-26-1978 by Ord. No. 78-15; 3-13-1986 by Ord. No. 86-6; 3-26-1992 by Ord. No. 92-5]
A.
A Zoning Board of Adjustment is hereby established pursuant to N.J.S.A.
40:55D-69, consisting of seven regular members and two alternate members,
all of whom shall be duly appointed by the Borough Council and shall
be residents of the Borough.[1]
B.
The terms of the regular members so appointed shall be for four years
from January 1 of the year of their appointment. The terms of the
alternate members so appointed shall be for two years from January
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, in the case of regular members,
shall be distributed evenly over the first four years after their
appointment and, in the case of alternate members, shall be distributed
evenly over the first two years after their appointment, provided
that the initial term of no regular member shall exceed four years
and 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. Nothing in this
section shall, however, be construed to affect the term of any legally
appointed present member of the Zoning Board of Adjustment, all of
whom, so appointed, shall continue in office until the completion
of the term for which they were so appointed.
C.
No member of the Zoning Board of Adjustment may hold any elective
office or position under the municipality.
D.
A vacancy occurring otherwise than by expiration of term shall be
filled for the unexpired term only.
E.
Alternate members shall be designated at the time of appointment
by the authority appointing them as "Alternate No. 1" and "Alternate
No. 2." Alternate members may participate in all matters but may not
vote except in the absence or disqualification of a regular member.
Participation of alternate members shall not be deemed to increase
the size of the Zoning Board of Adjustment established by this section
pursuant to N.J.S.A. 40:55D-69. 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 members shall vote in the order of their numerical
designations.
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,
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 Board shall not, however, exceed,
exclusive of gifts or grants, the amount appropriated by the governing
body for said position.
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 Investigation
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, 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 rules hereby laid down so 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 P.L. 1975,
c. 291,[1] 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.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
D.
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 365, Zoning.
(3)
Grant variances.
[Amended 12-20-1993 by Ord. No. 93-19]
(a)
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 pursuant to Chapter 365, Zoning, 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.
(b)
Where in an application or appeal relating to a specific piece of property the purposes of N.J.S.A. 40:55D-1 et seq. or N.J.S.A. 18A:7G-1 et seq., would be advanced by a deviation from the requirements of Chapter 365, Zoning, and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to Chapter 365, Zoning; provided, however, that the fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this subsection, and provided that no variance from those departures enumerated in Subsection D(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 N.J.S.A. 40:55D-60.[2]
(4)
In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to Chapter 365, Zoning, 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); or 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; 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. A variance under this subsection shall be granted only by affirmative vote of at least five members of the Zoning Board of Adjustment.
[Amended 12-20-1993 by Ord. No. 93-19[3]]
E.
No variance or other relief may be granted under the provisions of this section, including a variance or other relief involving an inherently beneficial use, 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 365, Zoning. Any application under any subsection or this section may be referred to the appropriate person or agency for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.
[Amended 12-20-1993 by Ord. No. 93-19[4]]
F.
The Board of Adjustment shall, in addition to the powers specified in Subsection D of this section, 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
building or structure not related to a street.
(3)
Grant, to the same extent and subject to the same restrictions as
the Planning Board, subdivision or site plan approval pursuant to
Article 6 of P.L. 1975, c. 291,[5] 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 Subsection D(4) of this section.
[5]
Editor's Note: See N.J.S.A. 40:55D-37 et seq.
A.
Appeals to the Board of Adjustment may be taken by any person aggrieved
or by an officer, department, board or bureau of the municipality
affected by any decision of the administrative officer. 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 was taken,
together with 10 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 12-20-1993 by Ord. No. 93-19]
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 an administrative officer. 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. Seven copies of the applications shall be
filed. 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 Building Inspector.
The Building Inspector 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 stays all proceedings in furtherance of the action in respect
of 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, 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.
Public notice on any application for variances shall be given
in accordance with N.J.S.A. 40:55D-12.
In exercising the above-mentioned power, the Board of Adjustment
may, in conformity with the provisions of P.L. 1975, c. 291,[1] or amendments thereto or subsequent statutes applying,
reverse or affirm, wholly or partly, or may 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.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
Any variance from the terms of this chapter hereafter granted
by the Zoning 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 entry of the judgment or determination
of the Board of Adjustment; except, however, that in the case of a
use variance which also involves a subdivision or site plan, approval
of the variance shall extend for the full period of preliminary approval,
i.e., three years; and 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 Zoning 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 of the submission of a complete application
for development to the Board pursuant to the provisions of N.J.S.A.
40:55D-72.
[Amended 12-20-1993 by Ord. No. 93-19]
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.
[Amended 12-20-1993 by Ord. No. 93-19]
The Board of Adjustment may refer any application to any appropriate
person or agency for its report, provided that such reference shall
not extend the period of time within which the Board of Adjustment
shall act.
Whenever review or approval of the application by the County
Planning Board is required by Section 5 of P.L. 1968, c. 285 (N.J.S.A.
40:27-6.3) in the case of a subdivision or Section 8 of P.L. 1968,
c. 285 (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. In the case of other variances,
the County Planning Board shall be notified of any application which
fronts on an existing or proposed county road, adjoins other county
land or is within 200 feet of a municipal boundary.[1]
[1]
Editor's Note: Original § 57-43, Appeals to the Zoning Board of Adjustment, which immediately followed this section, was repealed at time of adoption of Code (see Ch. 1, General Provisions, Art. I). Original § 57-44, Appeals from Zoning Board of Adjustment, which immediately followed that section, was repealed 11-12-2009 by Ord. No. 2009-14.
