Township of South Harrison, NJ Article V Zoning Board of Adjustment and Planning Board

§ 90-1.10 Zoning Board of Adjustment.

[Amended 12-27-2000 by Ord. No. 0-00-04]

Elimination of Zoning Board of Adjustment, Exercise of its Functions and Powers by Planning/Zoning Board. Pursuant to the authority of N.J.S.A. 40:55D-25c the Planning/Zoning Board shall exercise all powers of the Zoning Board of Adjustment; but the Class I (Mayor) and the Class III (Township Committee) members shall not participate in the consideration of applications for development which involve relief pursuant to N.J.S.A. 40:55D-70d.

§ 90-1.11 Establishment of the Planning/Zoning Board.

A. A nine member Planning/Zoning Board is hereby established, which Board shall exercise, to the same extent and subject to the same restrictions, all the powers of a board of adjustment, but the Class I and the Class III members shall not participate in the consideration of applications for development which involve relief pursuant to N.J.S.A. 40:55D-70. The Planning/Zoning Board shall consist of nine members in four classes as follows:

(1) Class I: the Mayor.

(2) Class II: one of the officials of the municipality, other than a member of the governing body, to be appointed by the Mayor, provided that if there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Planning/Zoning Board as required by N.J.S.A. 40:56A-1 shall be deemed to be the Class II Planning/Zoning Board member if there is both a member of the Board of Education among the Class IV members.

(3) Class III: a member of the governing body to be appointed by it.

(4) Class IV: six other citizens of the municipality to be appointed by the Mayor. The members of Class IV shall hold no other municipal office, except that one member may be a member of the Board of Education. A member of the Environmental Commission who is also a member of the Planning/Zoning Board as required by N.J.S.A. 40:56A-1 shall be a Class IV Planning/Zoning Board member unless there be among the Class IV members of the Planning/Zoning Board both a member of the Board of Education, in which case the member of the Environmental Commission shall be deemed to be the Class II member of the Planning/Zoning Board.

B. The term of the member composing Class I shall correspond with his or her official tenure. The terms of the members composing Class II shall be for one year or terminated at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the Environmental Commission shall be for three years or terminate at the completion of his or her term of office as a member of the Environmental Commission, whichever comes first.

C. The term of a Class IV member who is also a member of the Board of Education shall terminate whenever he or she is no longer a member of such other body or at the completion of his or her Class IV term, whichever comes first.

D. The terms of all Class IV members first appointed pursuant to this chapter shall be so determined that to the greatest practicable extent the expiration of such term shall be evenly distributed over the first four years after their appointment and as determined by resolution of the governing body; provided, however, that no term of any member shall exceed four years, and further provided that nothing herein shall affect the term of any present member of the Planning/Zoning Board, all of whom shall continue in office until the completion of the terms of four years except as otherwise herein provided. All terms shall run from January 1 of the year in which the appointment was made.

E. If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment as above provided for the unexpired term.

F. The Planning/Zoning Board shall elect a Chair and Vice Chair from the members of Class IV and select a Secretary who may be either a member of the Planning/Zoning Board or a municipal employee designated by it.

G. The Planning/Zoning Board 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.

H. The Planning/Zoning Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter.

I. Four Class IV alternate members shall be appointed to the Planning/Zoning Board by the Mayor and shall meet the qualifications of Class IV members of the Planning/Zoning Board. Alternate members shall be designated at the time of appointment by the Mayor as "Alternate No. 1," "Alternate No. 2," "Alternate No. 3," and "Alternate No. 4." The terms of the alternate members shall be for two years, except that the terms of the alternate members shall be such that the term of not more than two alternate members shall expire in any one year; provided, however, that in no instance shall the term of the Alternate Members first appointed exceed two years. A vacancy occurring otherwise than by expiration of a term shall be filled by the Mayor for the unexpired term only.

[Amended 6-10-2015 by Ord. No. 0-15-07]

J. Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member of any class. 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.

K. The governing body shall make provision in its budget and appropriate funds for the expenses of the Board.

L. The office of Planning/Zoning Board Attorney is hereby created. The Planning/Zoning Board may annually appoint to such office and fix compensation or rate of compensation of an attorney at law of New Jersey other than the Municipal Attorney.

§ 90-1.12 Powers and jurisdiction of Planning/Zoning Board.

A. The Planning/Zoning Board shall have the powers listed below in addition to other powers established by law:

(1) Make, adopt and from time to time, amend a Master Plan for the physical development of the Township, including any areas outside its boundaries which, in the Board's judgment, bear essential relation to the planning of the Township.

(2) Administer the provisions of land use development regulations.

(3) Participate in the preparation and review of programs or plans required by state or federal law or regulations.

(4) Assemble data on a continuing basis as part of a continuous planning process.

(5) Annually, prepare a program of municipal capital improvements projects projected over a term of six years and amendments thereto and recommend same to the governing body.

(6) Consider and make report to the governing body within 35 days after referral as to any proposed development regulation submitted to it and also pass upon other matters specifically referred to the Planning/Zoning Board by the governing body.

(7) 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 this chapter.

(8) Hear and decide, in accordance with the provisions of this chapter, requests for interpretation of the Zoning Map or Part 5, Zoning, or for decisions upon other special questions upon which the Board is authorized to pass by any land development ordinance or Official Map.

(9) 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 the structures lawfully existing thereon, the strict application of any regulation of this chapter 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 any difficulties or hardships; where an application or appeal relating to a specific piece of property the purposes of this chapter would be advanced by a deviation from Part 5, Zoning, of this chapter requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from the zoning regulations; provided, however, that no variance from those departures enumerated in § 90-1.12A(10) of this chapter shall be granted under this subsection; and provided further that the proposed development does not require approval by the Planning/Zoning Board of a subdivision, site plan or conditional use in conjunction with which the Planning/Zoning Board has power to review a request for a variance pursuant to N.J.S.A. 40:55D-60.

(10) In particular cases and for special reasons grant a variance to permit a structure or use in a district restricted against such structure or use; an expansion of a nonconforming use; deviation from a specification or standard pertaining solely to a conditional use; an increase in the permitted floor area ratio; an increase in the permitted density, 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 section shall be granted only by affirmative vote of 2/3 of the full authorized membership of the Board.

B. The Planning/Zoning Board shall have such other powers as prescribed by law, including but not limited to the power to grant the following variances, when the Planning/Zoning Board is reviewing applications for approval of subdivision plans, site plans or conditions uses:

(1) Variances pursuant to § 90-1.12A(9) of this chapter from lot area, lot dimension, setback and yard requirements, provided that relief pursuant to this subsection from lot area requirements shall not be granted for more than one lot;

(2) Direction pursuant to § 90-1.12A(10) of this chapter 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; and

(3) Direction pursuant to § 90-1.12E(2) of this chapter for issuance of a permit for a building or structure on a lot not abutting a street.

C. If an application for development requests one or more variances but not a variance for purpose enumerated in § 90-1.12A(9) of this chapter, the decision on the requested variance or variances shall be rendered under § 90-1.12A(9) of this chapter.

D. 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 purpose of the zone plan and Part 5, Zoning, of this chapter. Any application to the Planning/Zoning Board under 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 within which the Planning/Zoning Board shall act.

E. Other powers. The Planning/Zoning Board shall have such other powers as prescribed by law, including but not limited to, the following:

(1) Direct issuance of a building permit for the construction of a building or structure within the bed of a mapped street or public drainageway, flood control basin or public area as shown on a duly adopted official map ordinance of the municipality whenever one or more parcels of land within said bed cannot yield a reasonable return to the owner unless a building permit is granted. The Board shall impose reasonable requirements as a condition of granting the building permit as to promote the health, morals, safety and general welfare of the public.

(2) Direct issuance of a building permit for the construction of a building or structure on a lot not abutting a street which is shown on a duly adopted Official Map of the municipality or which is an existing state, county or municipal street or highway; or a street shown upon a plat approved by the municipal Planning/Zoning Board; or a street on a plat duly filed in the office of the County Recording Officer. The Board may grant such relief only where the enforcement of the statute requirement that a building lot abut a street would entail practical difficult or unnecessary hardship, or where the circumstances of the case do not require the building or structure to abut a street. The Board shall impose requirements of conditions that will provide adequate access for fire-fighting equipment, ambulances and other emergency vehicles necessary for the protection of the health and safety and will protect any future street layout shown on the Official Map or on the general circulation plan element of the municipal Master Plan.

F. The Planning/Zoning Board shall exercise, to the same extent and subject to the same restrictions, all the powers of a zoning board of adjustment, but the Class I (Mayor) and the Class III (Township Committee) members shall not participate in the consideration of applications for development which involve relief pursuant to N.J.S.A. 40:55D-70d.

G. Time limits.

[Added 5-9-2007 by Ord. No. 0-07-08]

(1) Any variance granted by the Planning/Zoning Board shall become null and void unless the applicant commences construction and/or use as permitted by variance within one year from the date of final approval of the variance by the Planning/Zoning Board; and

(2) For a period of up to one year after final approval, the applicant may apply to the Planning/Zoning Board for an extension of the variance for an additional one-year period. A maximum of an additional one-year extension may be applied for during the first extension period. All applications for extension may be granted upon good cause shown, such as, but not limited to, the applicant not receiving required outside agency approvals despite applicant's good-faith attempts to pursue such outside agency approvals.

§ 90-1.13 Other provisions applicable to Planning/Zoning Board.

A. Conflicts of interest. No member of the Planning/Zoning Board shall act on any matter in which he or she has either directly or indirectly any personal or financial interest. Whenever any such member shall disqualify himself or herself from acting on a particular matter, he or she shall not continue to sit with the Board on the hearing of such matter nor participate in any discussion or decision relating thereto.

B. Meetings.

(1) Meetings of both the Planning/Zoning Board shall be scheduled no less often than once a month, and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process.

(2) Special meetings may be provided for at the call of the Chair or on the request of any two Board members, which shall be held on notice to its members and the public in accordance with all applicable legal requirements.

(3) No action shall be taken at any meeting without a quorum being present, said quorum to be the majority of the full authorized membership of the Board.

(4) All actions shall be taken by majority vote of the members present except as otherwise required by this chapter. Failure of a motion to secure the number of votes required to approve an application for development shall be deemed an act denying the application.

(5) All meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meeting Law (N.J.S.A. 10:4-6 et seq.).

C. Records.

(1) Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Planning/Zoning Board and of the persons appearing by attorney, the action taken by the Planning/Zoning Board, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection during the normal business hours at the office of the Board Secretary. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes.

(2) A verbatim recording shall be made of every hearing. The recording of the proceedings shall be made by either stenographer, mechanical or electronic means. The municipality shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his or her expenses.

D. Public hearing.

(1) The Planning/Zoning Board shall hold a hearing on each application for development. The Board shall make the rules governing such hearings.

(2) Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing during normal business hours in the office of the Board Secretary. The applicant may produce other documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.

(3) The officer presiding at the hearing, or such person as he or she may designate, shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the County and Municipal Investigations Law, P.L. 1953, c. 38 (N.J.S.A. 2A:67A-1 et seq.) shall apply.

(4) The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.

(5) Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.

E. Public notice of a hearing.

(1) Public notice of a hearing shall be given for the following applications for development:

(a) Any request for a variance;

(b) Any request for conditional use approval;

(c) Any request for the issuance of a permit to build within the bed of a mapped street or public drainageway or on a lot not abutting a street;

(d) Any request for site plan approval involving one or more of the aforesaid elements; and

(e) Any request for preliminary major subdivision approval.

(2) The Secretary of the Planning/Zoning Board shall notify the applicant at least two weeks prior to the public hearing at which the application will be discussed, whenever possible. Notice of a hearing requiring public notice shall be given by the applicant at least 10 days prior to the date of the hearing in the following manner:

(a) By publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality.

(b) To all owners of real property as shown on the current tax duplicate located within 200 feet in all directions of the property which is the subject of the hearing, which notice shall be given by serving a copy thereof on the property owner, as shown on the current tax duplicate, or his or her agent in charge of the property; or by mailing a copy thereof by certified mail to the property owner at his or her address as shown on the said current tax duplicate. It is not required that a return receipt be obtained. Notice is deemed complete upon mailing (N.J.S.A. 40:55D-14).

(c) Notice to a partnership owner may be made by service upon any partner; notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation.

(d) To the Clerk of any adjoining municipality or municipalities when the property involved is located within 200 feet of said adjoining municipality or municipalities, which notice shall be given by personal service or certified mail.

(e) To the County Planning Board when the application for development involves property adjacent to an existing county road or proposed road shown on the Official County Map or on the County Master Plan, adjoining other county and, or situated within 200 feet of a municipal boundary.

[Amended 11-17-1999 by Ord. No. 0-99-04]

(f) To the Commissioner of Transportation of the State of New Jersey when the property abuts a state highway.

(g) To the Director of the Division of State and Regional Planning in the Department of Community Affairs when the hearing involves an application for development of property which exceeds 150 acres or 500 dwelling units, in which case the notice shall include a copy of any maps or documents required to be on file with the Board Secretary.

(h) To the corporate secretary of all public utilities and the general manager of all cable television companies that own land or any facility or that possess a right-of-way or easement within the property limits of the subject parcel, and/or within 200 feet in all directions of the property which is the subject of such hearing by personal service or certified mail.

(3) Upon the written request of an applicant, the Township Tax Assessor shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners and utilities within the Township to whom the applicant is required to give notice. The applicant shall be charged $0.25 per name or $10, whichever is greater, for said list and shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner not on the list shall not invalidate any hearing or proceeding. Additionally, the applicant shall be responsible for giving proper notice to all property owners pursuant to § 90-1.13E(2)(d) above who do not reside within the Township.

[Amended 12-27-2000 by Ord. No. 0-00-04]

(4) The applicant shall file an affidavit or proof of service and proof of publication with the Planning/Zoning Board.

(5) The notice shall state the date, time and place of the hearing and the nature of the matters to be considered, and identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal Tax Assessor's office, and the location and times at which any maps or documents for which approval is sought are available for inspection.

§ 90-1.14 Appeals and applications to Planning/Zoning Board.

A. Appeals to the Planning/Zoning Board may be taken by an interested party affected by any decision of an officer of the municipality based on or made in the enforcement of the land use development regulations or Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal with the administrative officer from whom the appeal is taken specifying the grounds of such appeal. Three copies of the notice shall simultaneously be filed with the Secretary of the Board. The officer 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 Planning/Zoning Board for action under any of its powers without prior application to the administrative officer of the municipality. Six copies of such an application shall be filed with the Secretary of the Board. All plot plans, maps and/or other information required for review by the Planning/Zoning Board or this chapter shall be submitted to the Secretary to the Board at least 10 days prior to the date set by the Board for the public hearing on the application. The applicant shall obtain all necessary forms from the Secretary of the Planning/Zoning Board.

C. The Planning/Zoning Board shall render a decision not later than 120 days after the date that an appeal is taken from the decision of an officer of the municipality or a complete application for development is submitted to the Board by a developer. 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.

D. Any appeal to the Planning/Zoning Board 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 Planning/Zoning Board, 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 or her 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.

E. In acting on any appeal, the Planning/Zoning Board 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 officer from whom the appeal is taken.

§ 90-1.15 Appeal of use variance approvals.

A. Any interested party may appeal to the governing body any final decision of the Planning/Zoning Board approving an application for development pursuant to N.J.S.A. 40:55D-70d.

B. Such appeal shall be made within 10 days of the date of publication of such final decision pursuant to § 90-1.12 of this chapter. The appeal to the governing body shall be made by serving the Municipal Clerk in person or by certified mail with a notice of appeal specifying the grounds thereof and the name and address of the appellant and name and address of his or her attorney, if represented. Such appeal shall be decided by the governing body only upon the record established before the Planning/Zoning Board. The appellant shall arrange and pay for five copies of a transcript of the Board of Adjustment hearing on the variance and shall deliver the five copies to the Municipal Clerk.

C. Notice of the meeting of the governing body to review the record below shall be given by the governing body of personal service or certified mail to the appellant, to those entitled to notice of a decision pursuant to § 90-1.12 of this chapter, and to the Planning/Zoning Board at least 10 days prior to the date of the meeting. The parties may submit oral and written arguments on the record at such meeting, and the governing body shall provide for verbatim recording and transcripts of such meeting pursuant to the Subsection f of Section 6 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-10).

D. The appellant shall, within five days of service of the notice of the appeal pursuant of Subsection A hereof, arrange for a transcript pursuant to Subsection f of Section 6 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-10) for use by the governing body and pay a deposit of $50 or the estimated cost of such transcription, whichever is less, or within 35 days of service of the notice of appeal, submit a transcript as otherwise arranged to the Municipal Clerk; otherwise, the appeal may be dismissed for failure to prosecute.

E. The governing body shall conclude a review of the record below not later than 95 days from the date of publication of notice of the decision below pursuant to Subsection i of Section 6 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-10), unless the applicant consents in writing to an extension of such period. Failure of the governing body to hold a hearing and conclude a review of the record below and to render a decision within such specified period shall constitute a decision affirming the action of the Board.

F. The governing body may reverse, remand, or affirm with or without the imposition of conditions the final decision of the Planning/Zoning Board approving a variance pursuant to Subsection d of Section 57 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-70). The review shall be made on the record made before the Planning/Zoning Board.

G. The affirmative vote of a majority of the full authorized membership of the governing body shall be necessary to reverse or remand to the Planning/Zoning Board or to impose conditions on or alter conditions to any final action of the Planning/Zoning Board. Otherwise the final action of the Planning/Zoning Board shall be deemed to be affirmed; a tie vote of the governing body shall constitute affirmance of the decision of the Planning/Zoning Board.

H. An appeal to the governing body shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the board from whose action the appeal is taken certifies to the governing body, after the notice of appeal shall have been filed with such board, that by reasons of facts stated in the certificate a stay would, in its 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 on application upon notice to the board from whom the appeal is taken and on good cause shown.

I. The governing body shall mail a copy of the decision to the appellant or if represented then to his or her attorney, without separate charge, and for a reasonable charge to any interested party who has requested it, not later than 10 days after the date of the decision. A brief notice of the decision shall be published in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality. Such publication shall be arranged by the applicant unless a particular municipal officer is so designated by ordinance, provided that nothing contained herein shall be construed as preventing the applicant from arranging such publication if he or she so desires. The governing body may make a reasonable charge for its publication. The period of time in which an appeal to a court of competent jurisdiction may be made shall run from the first publication, whether arranged by the municipality or the applicant.