[Amended by Ord. No. 1231; Ord. No. 1308]
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 with the advice and consent of Council to serve for a
term 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 term 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.
[Amended 2-18-2020 by Ord. No. 20-1998]
(1)
In transitioning from terms of office for members running from September
1 of the year in which the appointment is made to January 1 of the
year in which the appointment, this Code amendment shall not be construed
to affect any standing member of the Borough of Highland Park Zoning
Board of Adjustment. If a current member of the Borough of Highland
Park Zoning Board of Adjustment term shall expire on July 1, 2020,
said member may be appointed for an interim term from July 1, 2020,
to December 31, 2020. Thereafter, said member may be considered for
a new term commencing January 1, 2021.
B.
No member of the Zoning Board of Adjustment may hold
any elective office or position under the municipality.
C.
A vacancy occurring otherwise by expiration of term
shall be filled for the unexpired term only.
D.
No member of the Zoning Board of Adjustment shall
be permitted to act on any matter in which he has, either directly
or indirectly, any personal or financial interest.
E.
A member may, after a public hearing if he requests
it, be removed by the governing body for cause.
[Amended by Ord. No. 1231; Ord. No. 1308; 4-4-2006 by Ord. No. 1680]
A.
There shall be four alternate members of the Board
of Adjustment, appointed by the Mayor with advice and consent of Council.
The alternate members shall be designated at the time of appointment
by the Mayor and Council 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, beginning on July 1 of the year of
their appointment, 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 terms of the alternate members first appointed exceed two
years.
B.
The 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.
C.
No alternate 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.
D.
An alternate member may, after a public hearing if
he requests one, be removed by the governing body for cause.
[Added by Ord. No. 1304]
If the Board of Adjustment lacks a quorum because
any of its regular or alternate members is prohibited from acting
on a matter due to the member's personal or financial interest therein,
Class IV members of the Planning Board shall be called upon to serve,
for that matter only, as temporary members of the Board of Adjustment.
The Class IV members of the Planning Board shall be called upon to
serve in order of seniority of continuous service to the Planning
Board until there are the minimum number of members necessary to constitute
a quorum to act upon the matter without any personal or financial
interest therein, whether direct or indirect. If a choice has to be
made between Class IV members of equal seniority, the Chairman of
the Planning Board shall make the choice.
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 another municipal employee.
There is hereby created the position of Attorney
to the Zoning Board of Adjustment, appointed by the Zoning Board of
Adjustment. The Zoning Board of Adjustment shall annually appoint
and fix the compensation of the Zoning Board of Adjustment Attorney
for all legal services, including but not limited to regular and special
meetings of the Board, litigation and such other legal services as
may be deemed necessary by the Board. The Board Attorney shall be
an attorney other than the Municipal Attorney or Planning Board Attorney.
The Board shall not, however, exclusive of gifts or grants, exceed
the amount appropriated by the governing body for its use.
The Zoning Board of Adjustment may also employ
or contract for a planning consultant and his staff and other staff
and services as it may deem necessary. The Board shall not authorize
expenditures which exceed, exclusive of all gifts or grants, the amount
appropriated by the governing body for its use.
The Board shall adopt bylaws governing its procedural
operation and 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.
[Amended by Ord. No. 1304]
The Board of Adjustment shall have such powers
as are granted by law to:
A.
Hear and decide appeals where it is alleged by the
appellant that there is an error in any order, requirement, decision
or refusal made by an administrative official or agency based on or
made in the enforcement of the Zoning Ordinance.
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 to pass by the Zoning
Ordinance.
C.
Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property; 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 pursuant to Article XV 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 so as to relieve such difficulties or hardship, where, in an application or appeal relating to a specific piece of property, the purposes of this act would be advanced by a deviation from the Zoning Ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, a variance to allow departure from regulations pursuant to Article XV of this chapter; provided, however, that no variance from those departures enumerated in Subsection D of this section shall be granted under this paragraph; 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 § 230-30G.
D.
Nonconformities.
(1)
In particular cases and for special reasons, grant
a variance to allow departure from regulations 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 Section 54 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-67) pertaining
solely to a conditional use;
(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 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 an isolated
undersized lot or lots resulting from a minor subdivision; or
(f)
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 subsection shall be granted
only by affirmative vote of at least five members. 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
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.
[Amended by Ord. No. 1304]
In addition, the Zoning Board of Adjustment
shall 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.
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 N.J.S.A. 40:55D-37
or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever
the Board is reviewing an application for approval of a use variance
pursuant to N.J.S.A. 40:55D-70d.
D.
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 the
grant of all required subsequent approvals by the Zoning Board of
Adjustment, consistent with N.J.S.A. 40:55D-76.
E.
The Board of Adjustment shall not exercise the power
otherwise granted by this subsection 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.
A.
Appeals to the Board of Adjustment may be taken by
any interested party affected by any decision of an administrative
officer of the municipality based on or made in the enforcement of
the Zoning Ordinance or Official Map. Such appeal shall be taken within
20 days by filing a notice of appeal with the officer from whom the
appeal is taken, specifying the grounds of such appeal. 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
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 an administrative officer.
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.
The Board of Adjustment shall render its decision not later than 120 days after the date an appeal is taken from the decision of an administrative officer or after the submission of a complete application for development to the Board pursuant to the provisions of N.J.S.A. 40:55D-72b, or within such further time as may be consented to by the applicant. Failure of the Board to render a decision within such period shall constitute a decision favorable to the applicant. In the event the developer submits separate consecutive applications, pursuant to § 230-43C, the aforesaid time period 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 to render a decision within the prescribed period shall constitute a decision favorable to the applicant.
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 within one year from
the date of entry of the judgment or determination of the Board of
Adjustment, unless the applicable construction permits have been obtained
or the permitted use has actually been commenced by that date; 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.
Whenever the Environmental Commission has prepared
and submitted to the Zoning Board an index of the natural resources
of the municipality, the Zoning Board shall make available to the
Environmental Commission an informational copy of every application
for development to the Zoning Board. Failure of the Zoning Board to
make such an informational copy available to the Environmental Commission
shall not invalidate any hearing or proceeding.
