Pursuant to N.J.S.A. 40:55D-69, the Zoning Board
of Adjustment, as heretofore established, is hereby continued. The
Board shall consist of seven regular members and two alternate members,
all of whom shall be residents of the Borough and appointed by the
Mayor, with the advice and consent of the Municipal Council.
Alternate members shall be designated at the
time of appointment as "Alternate No. 1" and "Alternate No. 2." 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. Participation of alternate members shall not be deemed to increase
the size of the Zoning Board of Adjustment established by ordinance
pursuant to N.J.S.A. 40:55D-69.
The terms of the members first appointed under
this chapter 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 alternate members, evenly over the
first two years after their appointment, provided that the initial
term of no alternate 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. No member may hold any elective
office or position under the municipality.
A member may, after public hearing if he requests
it, be removed by the governing body for cause. A vacancy occurring
otherwise than by expiration of term shall be filled for the unexpired
term only.
A. No member of the Board of Adjustment shall be permitted
to act on any matter in which he has, either directly or indirectly,
any personal or financial interest. Whenever any such member shall
disqualify himself from acting on a particular matter, he shall not
continue to sit with the Board on the hearing side of such matter
nor participate in any discussion or decision related thereto.
B. If the Board of Adjustment lacks a quorum because
any of its regular or alternate members are prohibited from acting
due to a conflict, Class IV members of the Planning Board shall be
called upon to serve, for that matter only, as temporary Board of
Adjustment members. They shall be called to serve in order of seniority
of continuous service, until a quorum is reached. Where members have
equal seniority, the Chairman of the Board shall choose the order
in which they are called.
When any hearing before a Zoning Board of Adjustment
shall carry over two or more meetings, a member of the Board who was
absent for one or more of the meetings 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 a transcript or recording of
the meeting(s) from which he was absent and certifies in writing to
the Board that he has read such transcript or listened to such recording.
The Zoning Board of Adjustment is authorized
to adopt bylaws and such other rules and regulations governing its
procedural operation, which bylaws, rules and regulations shall be
consistent with the provisions of this chapter and N.J.S.A. 40:55D-1
et seq. 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 either a member of the Board of Adjustment or a municipal 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 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.
A. The Board of Adjustment shall have the power 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 officer based on or made in the
enforcement of the zoning regulations.
(2) Hear and decide, in accordance with the provisions
of the zoning regulations, requests for interpretation of the Zoning
Map or zoning regulation or for decisions upon other special questions
upon which such Board is authorized to pass by any zoning regulation
or Official Map in accordance with this chapter.
(3) Variance from application of zoning provisions.
(a)
Grant, by majority vote, a variance from the
strict application of the zoning provisions of this chapter:
[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 in the zoning provisions of this chapter would result
in peculiar and exceptional practical difficulties to or exceptional
and undue hardship upon the developer of such property.
[2]
Where, in an application or appeal relating
to a specific piece of property, the purposes of the Municipal Land
Use Law would be advanced by a deviation from the zoning provisions
of this chapter and the benefits of the deviation would substantially
outweigh any detriment.
(b)
No variance under this Subsection
A(3) shall be granted, however, from those departures enumerated in Subsection
A(4), just below. If the proposed development requires a subdivision, site plan or conditional use approval by the Planning Board but not a variance pursuant to N.J.S.A. 40:55D-70d, the request for a variance under these circumstances shall be acted upon by the Planning Board.
(4) In particular cases and for special reasons, grant
a variance to allow departure from the zoning regulations of this
chapter to permit a use or principal structure in a district restricted
against such use or principal structure; an expansion of a nonconforming
use; a deviation from a specification or standard (pursuant to N.J.S.A.
40:55D-67) pertaining solely to a conditional use; an increase in
a permitted floor area ratio (as defined in N.J.S.A. 40:55D-4); an
increase in a 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 isolated
undersized lots 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. Such variance
shall be granted only by affirmative vote of at least five members
of the Board.
(5) Give direction pursuant to N.J.S.A. 40:55D-34, 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 reserved
on an Official Map.
(6) Give direction pursuant to N.J.S.A. 40:55D-36 for
issuance of a permit for a building or structure not related to a
street.
(7) Grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision or site plan approval pursuant to Part
3, Subdivision and Site Plan Review, or conditional use approval pursuant to Article
XXIV whenever the Board of Adjustment is reviewing an application for approval of a variance pursuant to Subsection
A(4) above. In reviewing said subdivision or site plan, the Board of Adjustment shall follow the same procedures and be guided by the same standards as the Planning Board as provided in Part
3, Subdivision and Site Plan Review, of this chapter and, to that end, may establish a Subdivision and Site Plan Committee to function in the same manner as the Subdivision and Site Plan Committee of the Planning Board.
B. No variance or other relief may be granted under the terms of Subsection
A(1) through
(4) 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 regulations.
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 amendments or revision, if
any. The Board of Adjustment shall send copies of the report and resolution
to the governing body and Planning Board.
A. Appeals to the Board of Adjustment may be taken by
any interested party affected by any decision of any municipal building
or zoning official based on or made in the enforcement of the zoning
regulations or the Official Map. Such appeal shall be taken within
20 days by filing a notice of appeal with the official from whom the
appeal is taken, together with the filing of three copies of said
notice of appeal with the Secretary of the Board of Adjustment. Said
notice of appeal shall specify the grounds of such appeal. The official
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 Board of Adjustment for action under any of its powers without
prior application to any municipal building or zoning official. Applications
addressed to the original jurisdiction of the Board of Adjustment
shall be filed with the administrative officer in accordance with
the filing procedures of this chapter. At the time of filing the 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 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.
A. The Board of Adjustment shall render a decision not later than 120 days after the date that an appeal is taken from the decision of an administrative officer or not later than 120 days after the date of the submission of a complete application for development to the Board of Adjustment pursuant to §
415-61 of this chapter.
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. Whenever an applicant for development requests relief pursuant to §
415-39A(7), 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 Board 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 Secretary of the Board 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.
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 in 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.
Whenever review or approval of the application
by the County Planning Board is required by N.J.S.A. 40:27-6.3, in
the case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a
site plan, the 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.
An application under this section may be referred
to any appropriate person or agency, including the Planning Board,
pursuant to N.J.S.A. 40:55D-26, for its report, provided that such
reference shall not extend the period of time within which the Zoning
Board of Adjustment shall act.
The final disposition of any matter by the Board shall require the concurring vote of a majority of a quorum of its members except as provided in §
415-39A(4).
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 one year, unless otherwise limited
by the terms of the variance as originally approved by the Board of
Adjustment, 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 governing body or to a court of competent jurisdiction until the
termination in any manner of such appeal or proceeding or unless extended
by the Board of Adjustment upon the showing of good cause.
Any interested party may appeal the decision
of the Board of Adjustment granting approval to an application for
development pursuant to N.J.S.A. 40:55D-70d to the Borough Council.
Such appeal shall be made in accordance with the provisions of N.J.S.A.
40:55D-17.