The Zoning Board of Adjustment shall have the
power to:
A. Error or refusal. Hear and decide appeals where it
is alleged by the applicant that there is an error in any order, requirement,
decision or refusal made by an official based on or made in the enforcement
of the zoning provisions of this chapter.
B. Exceptions or interpretations. Hear and decide requests
for interpretation of the Zoning Map or the zoning provisions of this
chapter or for decisions upon other special questions upon which the
Board is authorized to pass by any zoning provisions of this chapter
or by any duty adopted Official Map.
C. General bulk variances.
(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 this chapter would result in peculiar and exceptional practical
difficulties to or exceptional and undue hardship upon the developer
of such property, grant 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 requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from such zoning requirements; provided, however, that no variance from those departures enumerated in §
215-90D hereinbelow [(N.J.S.A. 40:55D-70(d)] shall be granted under this section, 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 §
215-93A(7) [N.J.S.A.40:55D-60(a)].
D. Use variance, variances from conditional use standards, and major specific bulk variances. In particular cases and for special reasons, grant a variance to allow departure from the zoning provisions 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; deviation from a particular specification or standard set forth in this chapter as pertaining solely to a conditional use; an increase in the permitted floor area ratio as defined in this chapter and in N.J.S.A. 40:55D-4; an increase in the permitted density as defined in this chapter and 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 lot or lots resulting from a minor subdivision, in which event applications would be made pursuant to §
215-90C hereinabove. A variance under this subsection shall be granted only by affirmative vote of at least five members of the Board.
E. General provisions. 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 the zoning provisions of this chapter. In respect of
any airport hazard areas delineated under the Air Safety and Hazardous
Zoning Act of 1983, N.J.S.A. 6:1-80 et seq., no variance or other
relief may be granted under the terms of this section permitting the
creation or establishment of a nonconforming use which would be prohibited
under the standards promulgated pursuant to that act, except upon
issuance of a permit by the Commissioner of Transportation. An application
under this section may be referred to any appropriate person or agency,
other than 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.
F. Other powers. The Zoning Board of Adjustment shall
have such other powers as prescribed by law, including, but not limited
to, the following:
(1) Direct issuance of a construction permit pursuant
to N.J.S.A. 40:55D-34 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 of the
municipality whenever one or more parcels of land within the bed cannot
yield a reasonable return to the owner unless a construction permit
is granted. The Board may grant such relief only by affirmative vote
of a majority of the full authorized membership of the Zoning Board
of Adjustment, ensuring that such relief will tend to cause a minimum
change of the Official Map and will not significantly add to the cost
of opening any proposed street. The Board shall impose reasonable
requirements as a condition of granting the construction permit so
as to promote the health, morals, safety and general welfare of the
public.
(2) Direct issuance of a construction permit pursuant
to N.J.S.A. 40:55D-36 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 Board or a street on a plat duty filed in the office of the
County Recording Officer. The Board may grant such relief only when
the enforcement of the statute requirement that a building lot abut
a street would entail practical difficulty 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
or conditions that will provide adequate access for fire-fighting
equipment, ambulances and other necessary emergency vehicles for the
protection of the health and safety and that will protect any future
street layout on the Official Map or on the general circulation plan
element of the Municipal Master Plan.
(3) The Zoning Board of Adjustment shall have the power to grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision, site plan or conditional use approval whenever the proposed development requires approval by the Zoning Board of Adjustment of a variance pursuant to §
215-90D. 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 a grant of all required subsequent approvals by the Zoning 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 of the intent and purpose of the zone plan and the zoning provisions of this chapter. The number of votes of Board members required to grant such subsequent approval shall be as otherwise provided in this chapter for the approval in question, and the special vote pursuant to §
215-90D shall not be required. An application under this article 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.
The Mayor may appoint one or more persons as
a citizens advisory committee to assist or collaborate with the Planning
Board in its duties, but such person or persons shall have no power
to vote or take other action required of the Board. Such person or
persons shall serve at the pleasure of the Mayor.
[Amended by Ord. No. 1991-22]
A. Conflicts of interest. No regular or alternate member
of the Planning Board or Zoning Board of Adjustment shall act on any
matter in which he/she has either directly or indirectly any personal
or financial interest. Whenever any such member shall disqualify himself
from acting on a particular matter, he/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 Board and the Zoning
Board of Adjustment shall be scheduled no less than once a month,
and any meeting so scheduled shall be held as scheduled unless cancelled
for lack of applications for development to process.
(2) Special meetings may be provided for at the call of
the Chairman or on the request of any two Board members, which meetings
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, the quorum to be the majority of the full authorized
membership of the Board.
(4) All actions shall be taken by the majority vote of
the members of the Board present at the meeting except as otherwise
required by a provision of N.J.S.A. 40:55D-1 et seq. Failure of a
motion to receive the number of votes required to approve an application
for development pursuant to the exceptional vote requirements of N.J.S.A.
40:55D-34 or 40:55D-70d shall be deemed an action denying the application.
A member of the Board who was absent for one or more of the meetings
at which a hearing was held shall be eligible to vote on a 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/her the transcript or recording of all
of the hearings from which he/she was absent, and certifies in writing
to the Board that he/she has read such transcript or listened to such
recording.
(5) All regular meetings and all special meetings shall
be open to the public, except as provided in the Open Public Meeting
Law, c. 231, Laws of New Jersey, 1975. Notice of all such meetings
shall be given in accordance with the requirements of the Open Public
Meeting Law, c. 231, Laws of New Jersey, 1975 (N.J.S.A. 10:4-6 et
seq.).
C. Public hearings.
(1) The Planning Board or the Zoning Board of Adjustment,
as the case may be, shall hold a hearing on each application for development.
Each Board shall make 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 Administrative Officer. The applicant may
produce any 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 hearings, or such person
as he/she may designate, shall have the 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, or such other person as he/she may designate, 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 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.
D. 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 issuance of a permit to build within the bed of a mapped street or public drainageway or on a lot not abutting a street [see §
215-90F(1) and
(2)];
(d)
Any request for site plan and/or subdivision
approval involving one or more of the aforesaid elements; and
(e)
Any request for preliminary approval of a major
subdivision and/or preliminary major site plan.
(2) The Secretary of the Planning Board or the Zoning
Board of Adjustment, as the case may be, shall notify the applicant
at least two weeks prior to the public hearing at which the application
will be discussed. 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 an official newspaper of the
Township, if there is one, or in a newspaper of general circulation
in the Township in the absence of an official newspaper.
(b)
By notification by personal service or certified
mail to the following. An affidavit of proof of the giving of the
required notice shall be filed by the applicant with the municipal
agency at or prior to the hearing. It is not required that a return
receipt is obtained, notice is deemed complete upon mailing (N.J.S.A.
40:55D-14).
[1]
To all owners of real property as shown on the
current tax duplicate, located in the state and within 200 feet in
all directions of the property which is the subject of the hearing,
provided that this requirement shall be deemed satisfied by notice
to the condominium association, in the case of any unit owner whose
unit has a unit above or below it; or horizontal property regime,
in the case of any co-owner whose apartment has an apartment above
or below it.
[a] Notice to a partnership owner may
be made by service upon any partner.
[b] 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.
[c] Notice to a condominium association,
horizontal property regime, community trust or homeowners' association,
because of its ownership of common elements or areas located within
200 feet of the property which is the subject of the hearing, may
be made in the same manner as to a corporation without further notice
to unit owners, co-owners, or homeowners on account of such common
elements or areas.
[2]
To the Clerk of any adjoining municipality or
municipalities when the property involved is located within 200 feet
of the adjoining municipality or municipalities.
[3]
To the Mercer County Planning Board when the
application for development involves property adjacent to an existing
county road or proposed road as shown on the County Official Map or
County Master Plan, adjoining other County land or situated within
200 feet of a municipality boundary.
[4]
To the Commissioner of Transportation of the
State of New Jersey when the property abuts a state highway.
[5]
To the Director of the Division of State and
Regional Planning in the Department of Community Affairs when the
hearing involves an application for the 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 filed
with the Township.
(3) Upon the written request of an applicant, the Administrative Officer shall, within seven days, make and certify a list from current tax duplicates of names and addresses of owners 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 the list and shall be entitled to rely upon the information contained in such list, and failure to give notice to any lot 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 §
215-95D(2)(b) above who do not reside within the Township.
(4) The notice shall state the date, time and place of
the hearing and the nature of the matters to be discussed, and an
identification of the property proposed for development by street
address, if any, and by reference to lot and block numbers as shown
on the current tax duplicate in the Township Tax Assessor's office,
and the location and times at which any maps or documents for which
approval is sought are available for inspection.
E. Records.
(1) Minutes of every regular or special meeting shall be kept and shall include the names and addresses of the persons appearing and addressing the Planning Board or the Zoning Board of Adjustment and of any persons appearing by attorney; the action taken by the Planning or Zoning Board; the findings, if any, made by it and the reasons therefor. The minutes shall thereafter be made available, after approval by the Board, for public inspection during the normal business hours at the office of the Administrative Officer. 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. Such interested party shall be charged a reasonable fee for the reproduction of the minutes, as indicated in Article
X of this chapter.
(2) A verbatim recording shall be made of every hearing. The recording of the proceedings shall be made either by stenographer, mechanical or electrical means. The municipality shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense, provided that the charge for a transcript shall not exceed the maximum amount permitted in N.J.S.A. 2A:11-15, and as indicated in Article
X of this chapter. Each transcript shall be certified in writing by the transcriber to be accurate.
F. Decisions.
(1) Each decision on any application for development shall
be reduced to writing by the Board and shall include findings of facts
and conclusions based thereon.
(2) The Board shall provide the findings and conclusions
through:
(a)
A resolution adopted at a meeting held within
the time period provided in this chapter for action by the Board on
the application for development; or
(b)
A memorializing resolution adopted at a meeting
held no later than 45 days after the date of the meeting at which
the Board voted to grant or deny approval. Only the members of the
Board who voted for the action taken may vote on the memorializing
resolution, and the vote of a majority of such members present at
the meeting at which the resolution is presented for adoption shall
be sufficient to adopt the resolution. An action pursuant to N.J.S.A.
40:55D-9 (resulting from the failure of a motion to approved an application)
shall be memorialized by resolution as provided above, with those
members voting against the motion for approval being the members eligible
to vote on the memorializing resolution.
(3) The vote on any memorializing resolution shall be deemed to be a memorialization of the action of the Board and not to be an action of the Board; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required in Articles
VIII and
IX of this chapter.
(4) If the Board fails to adopt a resolution or memorializing
resolution as hereinabove specified, any interested party may apply
to the Superior Court in a summary manner for an order compelling
the Board to reduce its findings and conclusions to writing within
a stated time, and the cost of the application, including attorneys'
fees, shall be assessed against the municipality.
G. Complete application. An application for development
shall be complete for purposes of commencing the applicable time period
for action by the Planning Board or Board of Adjustment, as applicable,
when so certified by the Administrative Officer. In the event that
the Administrative Officer does not certify the application to be
complete within 45 days of the date of its submission, the application
shall be deemed complete upon the expiration of the forty-five-day
period for purposes of commencing the applicable time period unless
the application lacks information indicated on the checklist which
shall be provided to the applicant at the time of application, and
the Administrative Officer has notified the applicant in writing,
of the deficiencies in the application within 45 days of submission
of the application. The applicant may request that one or more of
the submission requirements be waived, in which event the Planning
Board or Board of Adjustment shall grant or deny the request within
45 days. Nothing herein shall be construed as diminishing the applicant's
obligation to prove in the application process that he/she is entitled
to approval of the application. The Planning Board or Board of Adjustment
may subsequently require correction of any information found to be
in error and submission of additional information not specified in
this chapter or any revisions in the accompanying documents as are
reasonably necessary to make an informed decision as to whether the
requirements necessary for approval of the application for development
have been met. The application shall not be deemed incomplete for
lack of any such additional information or any revisions in the accompanying
documents so required by the municipal agency.
H. Referral to Environmental Commission. Whenever the
Environmental Commission has prepared and submitted to the Planning
Board or the Board of Adjustment an index of the natural resources
of the municipality, the Board shall make available to the Environmental
Commission an informational copy of every application for development.
Failure of the Planning Board or the Board of Adjustment to make such
informational copy available to the Environmental Commission shall
not invalidate any hearing or proceeding.
I. Site review committee. The Board of Adjustment and
the Planning Board may establish site review committees, or a joint
committee serving both Boards, which may be made up of Board members
and Board professional advisors and Township officials, for the purpose
of holding informal reviews with applicants, determining the completeness
of applications, and reviewing and making recommendations to the Board
of Adjustment or Planning Board on applications for development.