A.
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. 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. Nothing in this chapter
shall be construed to affect the terms of any present members of the
Zoning Board of Adjustment, all of whom shall continue in office until
the completion of the terms for which they were appointed.
B.
No member of the Zoning Board of Adjustment may hold
any elective office or position under the Borough.
C.
A vacancy occurring otherwise than by expiration of
term shall be filled for the unexpired term only.
D.
There shall also be appointed by the Mayor not more
than two alternate members to said Zoning Board of Adjustment. The
alternate members shall be designated at the time of appointment as
"Alternate No. 1" and "Alternate No. 2." The terms of the alternate
members shall be so determined that the initial terms shall extend
evenly over the first two years after their appointment, provided
that the initial terms of said alternate members shall not exceed
two years. Thereafter, the terms of each alternate member shall be
for two years. 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.
The Board of Adjustment shall elect a Chairperson
and Vice Chairperson from its members and shall also elect a Secretary
who may be either a Board member or another Borough 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 Borough 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 Borough Council 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.
Statutory powers. 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.
Intent of chapter. 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.
Variances. 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
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 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. Appeals to the Board of Adjustment may be
taken by any person aggrieved or by an officer, department, board
or bureau of the Borough affected by any decision of the administrative
officer. Each appeal shall be taken within 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. The notice of appeal shall
specify the grounds for such 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.
Applications. 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. Three copies of the application 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 the 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.
C.
Appeal stays proceedings. An appeal shall stay 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 or her, that, by reason of facts stated
in the certificate, a stay would, in his or her 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 an 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,
reverse or affirm, wholly or partly, or may modify the order, 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.
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 such 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
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 Borough Council or to a court of competent
jurisdiction until the termination in any manner of such appeal or
proceeding.
The Board of Adjustment shall have such powers
as are granted by law as follows:
A.
Appeals. To 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 230, Zoning.
C.
Variance for hardship. 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 Chapter 230, Zoning, would result in peculiar and exceptional and practical difficulties to or exceptional and undo hardship upon the developer of such property, to grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulations so as to relieve such difficulties or hardships; and where in an application or appeal relating to a specific piece of property the purposes of the Municipal Land Use Law[1] would be advanced by a deviation from the requirements of Chapter 230, Zoning, and the benefits of the deviation would substantially outweigh any detriment, to grant a variance to allow departure from the regulation of Chapter 230, Zoning; provided, however, that no variance from those departures enumerated in Subsection D of this section shall be granted under this subsection; and provided, further, that the proposed development does not require the approval of 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-60a.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
D.
District variance.
(1)
In particular cases and for special reasons, the Board of Adjustment shall have the power to grant a variance to allow departure from the regulations of Chapter 230, Zoning, to permit:
(a)
A use or principal structure in a district restricted
against such use or principal structure.
(b)
An expansion of a nonconforming use.
(c)
Deviation from a specification or standard pursuant
to N.J.S.A. 40:55D-67 pertaining solely to conditional uses.
(d)
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).
(e)
An increase in the 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 in isolated undersized lot or lots resulting
from a minor subdivision.
(2)
A variance under this subsection shall be granted
only by affirmative vote of at least five members of the full authorized
membership of the Board.
E.
Prohibition. No variance or other relief may be granted under the provisions under 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 230, Zoning. Any application under any subsection of this section may be referred to any appropriate person or agency for its report, provided that such reference shall not extend the period of time in which the Zoning Board of Adjustment shall act.
A.
Permits. The Zoning Board of Adjustment shall, in addition to the powers specified in § 23-22, have power given by law to:
(1)
Direct the 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 the issuance of a permit pursuant to N.J.S.A.
40:55D-36 for a building or structure not related to a street.
B.
Subdivision; site plans; condition of use approval.
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 Article 6 of P.L. 1975,
c. 291,[1] 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 § 23-22D of this chapter. 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 a variance shall be conditioned upon a grant of all required subsequent approvals by the Board of Adjustment.
[1]
Editor's Note: See N.J.S.A. 40:55D-37 through
40:55D-58
A.
Time limit. The Board of Adjustment shall render its
decision not later than 120 days after the date:
B.
Failure to render decision. 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.
