[1]
Editor's Note: See § 3-21, as amended 4-10-2013 by Ord. No. 2013-04, which now provides that "all powers of the Zoning Board of Adjustment shall be assumed by the Planning Board, pursuant to N.J.S.A. 40:55D-25." Said ordinance also provided that wherever the words "Zoning Board of Adjustment" appear in the Code of the Borough of Gibbsboro, said words shall now read "Planning Board."
[Amended 4-15-1980 by Ord. No. 80-3]
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 appointed by the Mayor to serve for terms of four years from January 1 of the year of their appointment. There shall also be two alternate members who shall be designated at the time of appointment as "Alternate No. 1" and "Alternate No. 2." Of the alternates first appointed, one shall be appointed for a two-year term and one shall be appointed for a one-year term. Thereafter the term of each such alternate member shall be two years. No member or alternate member of the Zoning Board of Adjustment may hold an elective office or position under the Borough. A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only. 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.
[Added 11-17-1980 by Ord. No. 80-13]
All members and alternate members of the Zoning Board of Adjustment shall automatically be removed from office for nonattendance at three consecutive regularly scheduled meetings without good cause therefor. Members shall be reinstated only upon petitioning for a hearing to establish that good cause exists.
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 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.
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 Chapter 400, Zoning, or any term, clause, sentence or word thereof, and the Zoning Map in accordance with the general rules of construction applicable to legislative enactments.
[Amended 5-18-1982 by Ord. No. 82-2]
C. 
The Board may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances from the terms of Chapter 400, Zoning, in accordance with the general or specific rules contained therein, and with the general rules thereby laid down that equity shall be done in cases where the strict construction of the provisions of Chapter 400, Zoning, 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 Chapter 291 of the Laws of 1975 (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.
[Amended 5-18-1982 by Ord. No. 82-2]
A. 
Appeals to the Board of Adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the Borough 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 three copies of such notice with the Secretary of the Board of Adjustment. Such notice of appeal shall specify the grounds for the 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 4-15-1980 by Ord. No. 80-3]
B. 
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. 15 copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than 30 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 12-19-1994 by Ord. No. 94-14]
C. 
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.
[Amended 5-18-1982 by Ord. No. 82-2]
Any variance from the terms of Chapter 400, Zoning, 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 two years 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.
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 400, Zoning.
(2) 
Hear and decide requests for interpretation of the Zoning Map or Chapter 400, Zoning, or for decisions upon other special questions upon which such Board is authorized by Chapter 400 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 400, 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, 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 a 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-60a of the Municipal Land Use Law of 1975, as amended.
[Amended 4-15-1980 by Ord. No. 80-3]
(4) 
In particular cases and for special reasons, grant a variance to allow departure from regulations set forth in Chapter 400, Zoning, 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 of the Board.
[Amended 4-15-1980 by Ord. No. 80-3]
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 400, Zoning. 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.
[Amended 4-15-1980 by Ord. No. 80-3]
The Zoning Board of Adjustment shall, in addition to the powers specified in § 240-22 of this article, have power given by law to:
A. 
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.
B. 
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.
C. 
Grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision or site plan approval pursuant to N.J.S.A. 40:55D-37 et seq. or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever the proposed development requires approval by the Board of Adjustment of a variance pursuant to Subsection d of Section 57 of the Municipal Land Use Law (N.J.S.A. 40:55D-70). 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. The separate approval of the variance shall be conditioned upon grant of all required subsequent approvals by the Board of Adjustment. No such subsequent approvals 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 Zoning Ordinance. The number of votes of Board members required to grant any such subsequent approvals 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 Subsection d of Section 57 (N.J.S.A. 40:55D-70d) shall not be required.
[Amended 4-15-1980 by Ord. No. 80-3]
A. 
The Board of Adjustment shall render its decision not later than 120 days after the date:
(1) 
An appeal is taken from the decision of an administrative officer: or
(2) 
Of certification of completeness of an application for development to the Board of Adjustment. The Board or administrative officer authorized by the Board to review and certify applications shall certify the completeness of any application within 45 days from the date the application is filed with the Borough Clerk, or otherwise the application shall be deemed to be complete and shall immediately be so certified.
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. 
In the event that the developer elects to submit separate consecutive applications for a use variance and site plan review, respectively, the one-hundred-twenty-day provision shall apply to the application for approval of the variance; but the period for granting or denying any subsequent approval shall be as otherwise provided in this chapter.