[Amended 2-15-1979 by Ord. No. 1-79[1]]
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 of Kinnelon 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 expirations of such terms
shall be distributed evenly over the first four years after 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, however, be construed to affect the term of
any present member of the Zoning Board of Adjustment, all of whom
shall continue in office until the completion of the term 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.
In addition to the foregoing, the Mayor shall appoint
two alternate members to the Board of Adjustment to serve for a term
of two years. Alternate members shall be designated by the Chairman
"Alternate No. 1" and "Alternate No. 2" and shall serve in rotation
during the absence or disqualification of any regular member or members.
D.
A vacancy occurring otherwise than by expiration of
term shall be filled for the unexpired term only.
[1]
Editor's Note: This ordinance also provided
that any appointments as alternate members to the Zoning Board of
Adjustment shall be made retroactive to 1-1-1979.
The Board of Adjustment shall elect a Chairman
and Vice Chairman from its members and shall also select a Secretary
who may be either a board member or a Borough employee.
There is hereby created the office of Attorney
to the Zoning Board of Adjustment. The Zoning Board of Adjustment
may annually appoint and 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 the use of the Zoning Board
of Adjustment.
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 but 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 work 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 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 c. 291, P.L. 1975, 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 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 Building Inspector
of the Borough of Kinnelon. Each appeal shall be taken within the
65 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 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.
B.
Applications addressed to the original jurisdiction of the Board
of Adjustment without prior application to the Building Inspector
shall be filed with the Secretary of the Zoning Board of Adjustment.
Twelve copies of the application shall be filed. At the time of filing
an 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 Secretary of the Zoning
Board of Adjustment. The Secretary shall inform the applicant of the
steps to be taken to initiate proceedings and of the regular meeting
dates of the Board. A survey of the subject property shall be submitted
with every application.
[Amended 9-18-2003 by Ord. No. 23-03; 6-15-2006 by Ord. No. 15-06; 2-17-2022 by Ord. No. 01-22]
(1)
Survey requirements for accessory structures, walls, fences, generators,
air conditioning units and temporary storage structures:
(a)
A survey of any age, sealed or unsealed which contains the name
and signature of a licensed surveyor, showing the proposed location
of a proposed accessory structure, wall, fence, generator, air conditioning
unit or temporary storage structure, along with an affidavit of "no
change" from the property owner, provided no changes have been made
since the date the survey was performed.
(b)
If changes were made to the property after the survey was performed,
those changes must be marked up on the submitted survey, along with
an affidavit from the property owner indicating that the marked-up
survey reflects the current as-built condition. The survey, including
any markup, must be to scale, with dimensions, and cannot be a reduction
or enlargement of the original survey.
(2)
Survey requirements for all other applications:
(a)
If the survey was prepared not more than seven years from the
date of submittal of the application, and no changes have been made
since the date the survey was performed, it shall be accompanied by
an "affidavit of no change" signed by the applicant or owner. If changes
were made since the date of the survey, a new as-built survey is required.
(b)
If the survey was prepared more than seven years from the date
of submittal of the application, and no changes have been made since
the date the survey was performed, it must contain the signature and
seal of a certified surveyor attesting that it is an accurate representation
of the current conditions on the subject property. If changes were
made since the date of the survey, a new as-built survey is required.
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 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.
In exercising the above-mentioned power, the
Board of Adjustment may in conformity with the provisions of c. 291,
P.L. 1975, or amendments thereto or subsequent statutes applying,
reverse or affirm, wholly or partly, or 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 officer from whom the appeal was taken.
[Amended 8-16-2007 by Ord. No. 18-07]
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 said 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,
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 Borough Council, or to a court of
competent jurisdiction, until the termination in any manner of such
appeal or proceeding. The Board of Adjustment may grant an extension
of the variance approval for a period determined by the Board of Adjustment
but not to exceed nine months from what would otherwise be the expiration
date, if the applicant proves to the reasonable satisfaction of the
Board of Adjustment that the applicant was barred or prevented, directly
or indirectly, from commencing with the construction or use because
of delays in obtaining legally required approvals from other governmental
entities and that the applicant applied promptly for and diligently
pursued the required approvals. The applicant shall apply for the
extension before what would otherwise be the expiration date of the
variance approval. In addition, all applicants seeking an extension
under this section shall provide public notice of the hearing on said
extension request in the manner as set forth in N.J.S.A. 40:55D-12.
The Board of Adjustment shall have such powers
as are granted by law to:
B.
Hear and decide requests for interpretation of the
Zoning Map or Zoning Ordinance or for decisions upon other special
questions upon which such Board is authorized by the Zoning Ordinance
to pass.
C.
Hardship.
(1)
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
of the Zoning Ordinance 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.
(2)
Where in an application or appeal relating to a specific piece of property the purposes of this chapter would be advanced by a deviation from the Zoning Ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to the Zoning Ordinance; 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 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 Subsection 47-a of the Municipal Land Use Law of 1975, c. 291, P.L. 1975 (N.J.S.A. 40:55D-60).
[Amended 3-21-1991 by Ord No. 3-91]
D.
In particular cases and for special reasons, grant
a variance to allow departure from regulations pursuant to Article
8 of the Municipal Land Use Law of 1975, c. 291, P.L. 1975, to permit:
(1)
A use or principal structure in a district restricted
against such use or principal structure.
(2)
An expansion of a nonconforming use.
(3)
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.
(4)
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).
(5)
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 isolated, undersized lot or
lots resulting from a minor subdivision. A variance under this subsection
shall be granted only by affirmative vote of at least five members
of the Board of Adjustment.
[Amended 3-21-1991 by Ord. No. 3-91]
(6)
A height of a principal structure which exceeds by
10 feet or 10% the maximum height permitted in the district for a
principal structure.
[Added 12-19-1991 by Ord. No. 21-91]
F.
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
Zoning Ordinance. 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.
A.
The Zoning Board of Adjustment shall, in addition to the powers specified in § 47-23 of this article, 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.
B.
The Board of Adjustment shall not exercise the power otherwise set forth in Subsection A above if the proposed development requires approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board has power to direct the issuance of a permit pursuant to N.J.S.A. 40:55D-60.
[Added 12-19-1991 by Ord. No. 21-91]
C.
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 (N.J.S.A. 40:55D-37) or conditional use approval pursuant to P.L. 1975, c. 291 (N.J.S.A. 40:55D-67), whenever the proposed development requires approval by the Board of Adjustment of a variance pursuant to § 47-23D of this chapter.
[Amended 10-19-1978 by Ord. No. 11-78; 3-21-1991 by Ord. No. 3-91]
(1)
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 approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment to the intent and purpose of the Zone Plan and Zoning Ordinance. 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 pursuant to the aforesaid § 47-23D of this chapter shall not be required.
(2)
Whenever an application for development requests relief pursuant to this Subsection C, the Board of Adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a completed application to the administrative officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise provided in this chapter. 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.
(3)
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.
(4)
An application 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
Zoning Board of Adjustment shall act.
(a)
The fee for a subdivision application to the
Board of Adjustment in conjunction with a use variance shall be the
same as the fee adopted by the Planning Board and shall be in addition
to the fee levied for review of the application for said use variance.
[Added 3-21-1991 by Ord. No. 3-91]
The Board of Adjustment shall, at least once
a year, review its decisions on applications and appeals for variances
and prepare and adopt by resolution a report of its findings on Zoning
Ordinance provisions which were the subject of variance requests and
its recommendations for Zoning Ordinance amendment or revision, if
any. The Board of Adjustment shall send copies of the report and resolution
to the governing body and Planning Board.
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 the Building Inspector or the submission of a
complete application for development to the Board pursuant to the
provisions of N.J.S.A. 40:55D-70b. 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.
