A.
General. It is the intent of this section to set forth the procedures for applications to the Board for variances and for the direction of the issuance of certain permits as permitted by this chapter. In addition to the procedures set forth in the following subsections for each type of application, the procedures set forth for processing and review of site plan and subdivision applications in this chapter shall apply, unless the context clearly indicates otherwise or unless contrary to law, including but not necessarily limited to the following:
B.
Review of existing nonconforming conditions in connection with applications for variances or for the direction of the issuance of certain permits. In reviewing applications for variances or for the direction of the issuance of certain permits, the Board shall determine whether any existing nonconforming conditions involving the subject property will exacerbate, intensify, alter, affect or in some way result in a significant impact on the proposed use, structure or land. If the Board finds that no substantial impact or detriment will result, the Board shall so state in its findings of fact in the resolution for the application, without the need for such existing nonconforming conditions to meet the criteria established by N.J.S.A. 40:55D-34, 36, 51a, 51b, 70c and 70d and this chapter for variances or exceptions. If the Board finds that substantial impacts or detriments will result, however, the application shall not be approved unless and until the applicant agrees to mitigate or eliminate such impacts or detriments to the maximum extent feasible. The above shall not be construed to alter the review procedures nor the criteria for granting variances or exceptions for violations proposed by the development or existing illegally on the subject property.
C.
"C" Variance Applications. Subject to the provisions of N.J.S.A 40:55D-1 et seq., applications to the Board may be taken for relief from the zoning regulations, Articles XII through XX of this chapter. The following provisions shall apply to "C" variance applications:
(1)
When subdivision, site plan or conditional use approval is required, the developer may elect to submit a separate application with the Board requesting approval of the variance and a subsequent application for any such other required approval. Any separate approval of the variance shall be conditioned upon grant of all required subsequent approvals by the Board.
(3)
An application pursuant to this subsection shall stay all proceedings in the same manner as specified in § 184-51B(4).
(5)
The applicant shall give public notice of the hearing in the manner specified for development applications in § 184-25. Affidavits of proof of service of notice shall be submitted at least seven business days prior to the hearing.
(6)
There must be a showing by the applicant, and the Board must find, all of the following:
(a)
That 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 pursuant to Part 3, Zoning, of this chapter would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property; the Board must 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;
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(b)
In an application or appeal relating to a specific piece of property, that the purposes of the Municipal Land Use Law would be advanced by a deviation from the requirements of Part 3, Zoning, of this chapter and the benefits of the deviation would substantially outweigh any detriment; the Board may grant a variance to allow departure from regulations pursuant to Part 3, Zoning, of this chapter; provided, however, that the fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this subsection and provided that no variance from those departures enumerated in § 184-50D shall be granted under this subsection; and provided further that the proposed development does not require approval by the Board of a subdivision, site plan or conditional use, in conjunction with which the Board has power to review a request for a variance pursuant to § 184-50A;
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
(c)
The variance can be granted without substantial detriment to the public good; and
(d)
The grant of the variance will not substantially impair the intent of the zone plan and zoning regulations.
(7)
The Board shall render a decision not later than 120 days after the date the application is certified to be complete pursuant to Article IX, or within such further time as may be consented to by the applicant.
(8)
The Board may refer an application pursuant to this subsection to any appropriate person or agency, for its report; provided that such reference shall not extend the period of time within which the Board shall act.
D.
"D" Variance applications. Subject to the provisions of N.J.S.A. 40:55D-1 et seq. and in particular cases, applications to the Board may be taken for relief from the zoning regulations, Articles XII through XX of this chapter, involving "D" variance requests. A developer may file an application for a "D" variance with the Board without prior application to the Zoning Official or Construction Official. The following provisions shall apply to "D" variance applications:
(2)
An application pursuant to this subsection shall stay all proceedings in the same manner as specified in § 184-51B(4).
(4)
The applicant shall give public notice of the hearing in the manner specified for development applications in § 184-25. Affidavits of proof of service of notice shall be submitted at least seven business days prior to the hearing.
(5)
In particular cases for special reasons, the Board may grant a variance to allow departure from regulations pursuant to Articles XII through XX 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 specification or standard pursuant to N.J.S.A. 40:55D-67 pertaining solely to a conditional use; an increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4; an increase in the 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 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 zone for a principal structure.
(6)
A variance under this subsection shall be granted only by affirmative vote of at least five members.
(8)
No variance or other relief may be granted under the terms of this § 184-50D, including a variance or other relief involving an inherently beneficial use and/or special reasons, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and this chapter.
E.
Application for issuance of permits for areas on Official Map. Applications to the Board may be taken for relief necessary to issue a permit for any building or structure in the bed of any street or public drainage way, flood control basin or public area reserved on the Official Map. A developer may file an application for development with the Board under this subsection without prior application to the Construction Official. The following provisions shall apply to such applications:
(1)
When subdivision, site plan or conditional use approval is required, the developer may submit an application with the Board requesting direction for the issuance of a permit and a subsequent application for any such other required approval. Any such separate direction for the issuance of a permit shall be conditioned upon grant of all required subsequent approvals by the Board.
(2)
Any application pursuant to this subsection shall consist of a completed application form and a map showing the property in question and the location of the proposed building and/or structure in relation to the bed of the mapped street or public drainage way, flood control basin or public area reserved on the Official Map. The following number of copies shall be submitted:
(3)
An application pursuant to this subsection shall stay all proceedings in the same manner as specified in § 184-51B(4).
(5)
The applicant shall give public notice of the hearing in the manner specified for development applications in § 184-25. Affidavits of proof of service of notice shall be submitted at least seven business days prior to the hearing.
(6)
There must be a showing by the applicant, and the Board must find, that the subject property cannot yield a reasonable return to the owner unless a building permit is granted.
(7)
Any decision of the Board to direct the issuance of a permit pursuant to this subsection shall be by an affirmative vote of a majority of the full authorized membership of the Board and shall be in accordance with terms and conditions which will as little as practicable increase the cost of opening such street, or tend to cause a minimum change of the Official Map, and the Board shall impose reasonable requirements as a condition of granting the permit so as to promote the health, morals, safety and general welfare of the public.
(8)
The Board shall render a decision not later than 120 days after the date the application is certified to be complete pursuant to this chapter or within such further time as may be consented to by the applicant.
(9)
The Board may refer an application pursuant to this subsection to any appropriate person or agency, for his/her/its report; provided that such reference shall not extend the period of time within which the Board shall act.
F.
Application for permits for lot not abutting a street. Applications to the Board may be taken for relief necessary to issue a permit for any building or structure on a lot which does not abut a street giving access to such building or structure. A developer may file an application for development with the Board under this subsection without prior application to the Construction Official. The following provisions shall apply to such applications:
(1)
When subdivision, site plan or conditional use approval is required, the developer may elect to submit an application with the Board requesting direction for the issuance of a permit and a subsequent application for any such other required approvals. The separate direction for the issuance of a permit shall be conditioned upon grant of all required subsequent approvals by the Board.
(2)
Any applicant pursuant to this subsection shall be required to submit a completed application form and a map showing the property in question and the manner by which access will be provided to the building and/or structure, including the location of the nearest street from which access may be obtained. The following number of copies shall be submitted:
(3)
An application pursuant to this subsection shall stay all proceedings in the same manner as specified in § 184-51B(4).
(5)
The applicant shall give public notice of the hearing in the manner specified for development applications in § 184-25. Affidavits of proof of service of notice shall be submitted at least seven business days prior to the hearing.
(6)
There must be a showing by the applicant and the Board must find that the refusal to issue a permit would entail practical difficulty or hardship, or that the circumstances of the case do not require the building or structure to be related to a street.
(7)
Any decision of the Board to direct the issuance of a permit pursuant to this subsection shall be in accordance with terms and conditions which will provide adequate access for fire fighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety and that will protect any future street layout shown on the Official Map or on the circulation plan element of the Borough Master Plan.
(8)
The Board shall render a decision not later than 120 days after the date the application is certified to be complete pursuant to § 184-58 or within such further time as may be consented to by the applicant.
(9)
The Board may refer an application pursuant to this subsection to any appropriate person or agency, for its report; provided that such reference shall not extend the period of time within which the Board shall act.[1]
[1]
Editor's Note: Former Subsection G, Expiration of variances, of the 2001 Code, which immediately followed, was repealed 12-9-2008 by Ord. No. 08-16R.