[Amended 2-10-1997 by Ord. No. O-15-97; 5-10-2010 by Ord. No.
O-10-10]
A.
A Zoning Board of Adjustment is hereby established as authorized
by N.J.S.A. 40:55D-1 et seq. and shall consist of seven regular members
and four alternates, residents of the municipality, who shall be appointed
by the Mayor with the advice and consent of Council.
B.
Alternate members shall be designated at the time of appointment
by the governing body as "Alternate No. 1," "Alternate No. 2," "Alternate
No. 3," and "Alternate No. 4." No member or alternate may hold any
elective office or position under the municipality.
C.
Alternate members may participate in discussions of the proceedings
but may not vote except in the absence or disqualification of a regular
member.
D.
A vote shall not be delayed in order that a regular member may vote
instead of an alternate member.
E.
In the event that a choice must be made as to which alternate member
is to vote, the alternate with the lowest number designation shall
vote.
A.
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, in the case of regular members,
evenly over the first four years after their appointment, and in the
case of alternates, evenly over the first two years after their appointment,
provided that the initial term of no regular 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.
B.
Members and alternate members of the Zoning Board
of Adjustment on August 1, 1976, shall continue in office until the
completion of their terms as provided by law immediately prior to
that date, except that alternate members shall become regular members.
C.
A vacancy occurring otherwise than by expiration of
term shall be filled for the unexpired term only.
A member of the Zoning Board of Adjustment who
was absent for one or more of the meetings at which a hearing was
held 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 the transcript or recording of all of the hearings from which
he was absent and certifies in writing to the Board that he has read
such transcript or listened to such recording.
The Board of Adjustment shall have the power
to:
A.
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 officer based on or made in the enforcement of Chapter 421, Zoning Ordinance.
B.
Hear and decide, in accordance with the provisions
of any such ordinance, requests for the interpretation of the Zoning
Map or Ordinance or for decisions upon other special questions upon
which such Board is authorized to pass by any Zoning or Official Map
Ordinance.
C.
Where, by reason of exceptional narrowness, shallowness
or shape of a specific piece of property, or by reason of exceptional
topographical conditions, or by reason of other extraordinary and
exceptional situation or condition of such piece of property, the
strict application of any zoning regulation 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; 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 a subdivision,
site plan or conditional use in conjunction with which the Planning
Board shall review the request for a variance.
D.
Variances.
(1)
In particular cases and for special reasons, grant
a variance to allow departure from the zoning regulations, including
but not limited to allowing a structure or use in a district restricted
against such structure or use, but only by affirmative vote of at
least five members.
(2)
No variance or other relief may be granted under the terms 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 the purpose of the Zone Plan and Chapter 421, Zoning.
(3)
An application under this section shall 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.
E.
For purposes of preserving the integrity of the Official
Map of a municipality, no permit shall be issued for any building
or structure in the bed of any street or public drainageway, flood
control basin or public area reserved on the Official Map or shown
on a plat filed pursuant to this chapter before adoption of the Official
Map, except as herein provided. Whenever one or more parcels of land
upon which is located the bed of such a mapped street or public drainageway,
flood control basin or public area reserved on the Official Map cannot
yield a reasonable return to the owner unless a building permit is
granted, the Board of Adjustment may, in a specific case, by an affirmative
vote of a majority of the full authorized membership of the Board,
direct the issuance of a permit for a building or structure in the
bed of such mapped street or public drainageway or flood control basin
or public area reserved on the Official Map, which will, as little
as practicable, increase the cost of opening such street or tend to
cause a minimum change of the Official Map, and the Board shall impose
reasonable requirements as a condition of granting the permit so as
to promote the health, morals, safety and general welfare of the public.
F.
No permit for the erection of any building or structure
shall be issued unless the lot abuts a street giving access to such
proposed building or structure. Such street shall have been duly placed
on the Official Map or shall be an existing state, county or municipal
street or highway or a street shown upon a plat approved by the Planning
Board or a street on a plat duly filed in the office of the county
recording officer prior to the passage of an ordinance under the Land
Use Act or any prior law which required prior approval of plats by
the governing body or other authorized body. Before any such permit
shall be issued, such street shall have been certified to be suitably
improved to the satisfaction of the governing body, or such suitable
improvement shall have been assured by means of a performance guaranty,
in accordance with standards and specification for road improvements
approved by the governing body, as adequate in respect to the public
health, safety and general welfare of the special circumstance of
the particular street. Where the enforcement of this section would
entail practical difficulty or unnecessary hardship or where the circumstances
of the case do not require the building or structure to be related
to a street, the Board of Adjustment may, upon application or appeal,
vary the application of this section and direct the issuance of a
permit, subject to conditions that will provide adequate access for
fire-fighting equipment, ambulances and other emergency vehicles necessary
for the protection of health and safety and that will protect any
future street layout shown on the Official Map or on a general circulation
plan element of the Municipal Master Plan.
A.
The governing body shall make provision in its budget
and appropriate funds for the expenses of the Board of Adjustment.
B.
The Board of Adjustment may employ or contract for
and fix the compensation of legal counsel other than the Municipal
Attorney and experts and other staff and services as it shall deem
necessary, not exceeding, exclusive of gifts or grants, the amount
appropriated by the governing body for its use.
A.
A developer may file an application for development
with the administrative officer without prior application to any other
municipal official.
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.
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 with 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.
A.
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 whenever the proposed development
requires approval by the Board of Adjustment of a use variance.
B.
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 or site plan.
C.
The separate approval of the variance shall be conditioned
upon the granting of all required subsequent approvals by the Board
of Adjustment.
D.
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 421, Zoning.
E.
The number of votes of Board members required to grant
any such subsequent approval shall be as otherwise provided in this
chapter for the approval in question, and the special vote for a use
variance shall not be required.
Whenever an application for development requests relief pursuant to § 53-21, 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. 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 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.
An application under § 53-21 above shall be referred to 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.
