Borough of Fanwood, NJ Procedures for Variance Applications, Appeals, Requests for Interpretations or Other Special Questions

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:

(1)

The filing procedures in Article IX;

(2)

The procedures for filing simultaneous applications in § 184-59;

(3)

The completeness review procedures in Article IX;

(4)

The general review procedures in Article IX;

(5)

The conditional approval provisions in § 184-65;

(6)

The provisions for extensions and tolling of approvals in § 184-67 and § 184-68 respectively; and

(7)

The provisions for reservation of public areas, payment of taxes and assessments, disclosure of ownership and binding nature of approvals in §§ 184-76, 184-77, 184-78, and 184-79 respectively.

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" 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.

(2)

Any application pursuant to this section shall be required to submit the information required by § 184-57, and shall be reviewed for completeness in accordance with the procedures set forth in Article IX.

(3)

An application pursuant to this section shall stay all proceedings in the same manner as specified in § 184-51B(4).

(4)

A public hearing shall be held in accordance with the provisions for hearings in Article V.

(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)

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 pursuant to Article VIII 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 relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship;

(b)

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, grant a variance to allow departure from regulations pursuant to Article VIII 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 section; 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;

(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 section 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" 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 Officer or Construction Official. The following provisions shall apply to "D" variance applications:

(1)

Any application pursuant to this section shall be required to submit the information required by Article X, and shall be reviewed for completeness in accordance with the procedures set forth in § 184-80.

(2)

An application pursuant to this section shall stay all proceedings in the same manner as specified in § 184-51B(4).

(3)

A public hearing shall be held in accordance with the provisions for hearings in Article V.

(4)

(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)

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.

(b)

A variance under this section shall be granted only by affirmative vote of at least five members.

(c)

If an applicant requests one or more variances but not a variance for a purpose enumerated in this § 184-50D, the decision on the requested variance or variances shall be rendered under § 184-50C.

(d)

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)

An application under § 184-50D 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 Board shall act.

(6)

The Board shall render a decision not later than 120 days after the date the application is certified to be complete pursuant to § 184-80, or within such further time as may be consented to by the applicant.

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 section 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 section 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:

(a)

One signed original application, and 25 copies of the map and the application.

(b)

In addition, fees required by Article VI shall be submitted, as well as proof of payment of taxes and assessments.

(3)

An application pursuant to this section shall stay all proceedings in the same manner as specified in § 184-51B(4).

(4)

A public hearing shall be held in accordance with the provisions for hearing set in Article V.

(5)

(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 section 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 section 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.

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 section 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 section 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:

(a)

One signed original application and 25 copies of the map and the application.

(b)

In addition, fees required by Article VI shall be submitted as well as proof of payment of taxes and assessments.

(3)

An application pursuant to this section shall stay all proceedings in the same manner as specified in § 184-51B(4).

(4)

A public hearing shall be held in accordance with the provisions for hearings in Article V.

(5)

(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 section 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)

[1]

Editor's Note: Former Subsection G, Expiration of variances, which immediately followed, was repealed 12-9-2008 by Ord. No. 08-16R.

General. It is the intent of this section to set forth the procedure for appeals, interpretations and requests concerning special questions to the Board 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 the following:

(1)

The filing procedures in § 184-57;

(2)

The procedures for filing simultaneous applications in § 184-59C(11);

(3)

The completeness review procedures in §§ 184-58 and 184-80;

(4)

The general review procedures in Article IX;

(5)

The conditional approval provisions in § 184-65;

(6)

The default approval provisions in § 184-66;

(7)

The provisions for extensions and tolling approvals in §§ 184-67 and 184-68 respectively; and

(8)

The provisions for reservation of public areas, payment of taxes and assessments, disclosure of ownership and binding nature of approvals in §§ 184-76, 184-77, 184-78 and 184-79, respectively.B. Appeal alleging erroneous Zoning Officer decision. Appeals to the Board may be taken by an interested party when it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by the Zoning Officer based on or made in the enforcement of the zoning regulations of this chapter. The following provisions shall apply to such appeals:

(9)

Appeals must be taken within 20 days of the decision of the Zoning Officer.

(10)

A notice of appeal shall be filed with the Zoning Officer, specifying the grounds of the appeal. The Zoning Officer shall immediately transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

(11)

Fees required by Article VI shall be submitted with the notice of appeal, as well as proof of payment of taxes and assessments.

(12)

An appeal to the Board shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the Zoning Officer certifies to the Board after the notice of appeal shall have been filed with him or her, that by reason of facts stated in the certificate a stay would, in his/her 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.

(13)

A public hearing shall be held in accordance with the provisions for hearings in Article V. The appellant shall give public notice of the hearing in the manner specified for development applications in this chapter provided that the parties entitled to notice shall be limited to those specified in § 184-25B. If the appeal is made by an interested party other than the owner of the property which was the subject of the decision by the Zoning Officer, notice shall also be sent to said property owner, in addition to the parties specified in § 184-25B. Affidavits of proof of service of notice shall be submitted at least seven business days prior to the hearing.

(14)

The Board 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 shall have all the powers of the Zoning Officer.

(15)

The Board shall render a decision not later than 120 days after the date the appeal is taken from the Zoning Officer, or within such further time as may be consented to by the applicant.

(16)

(17)

The Zoning Officer shall not participate as a member of the Board in the consideration of the appeal, including but not limited to the deliberations and voting. Notwithstanding the foregoing sentence, nothing shall prohibit the Zoning Officer from testifying at the hearing.

Request for interpretation or other special questions. The Board shall hear and decide requests for interpretation of the Zoning Map or zoning regulations, or for decisions upon other special questions upon which the Board is specifically authorized to pass by this chapter. The following provisions shall apply to such requests.

(1)

An application form shall be completed and shall be accompanied by a specific written request which outlines that part of the Zoning Map, zoning regulations or Official Map for which an interpretation is sought, or outlines the special question that the Board is asked to consider.

(2)

One signed original and 25 copies of the application form and all accompanying documentation shall be submitted to the Secretary of the Board.

(3)

Fees required by Article VI shall be submitted with the request, as well as proof of payment of taxes and assessments.

(4)

A public hearing shall be held in accordance with the provisions for hearings in Article V.

(5)

The applicant shall publish notice of the hearing on the request in the official newspaper of the Borough, if there is one, or in the newspaper of general circulation in the Borough. If the request for interpretation or special question concerns a specific property, the applicant shall also give public notice of the hearing in the manner specified for development applications in § 184-25; provided that the parties entitled to notice shall be limited to those specified in § 184-25B. If the request is made by a person other than the owner of the specific property which is the concern of the interpretation or special question, notice shall also be sent to said property owner, in addition to the parties specified in § 184-25. Affidavits of proof of service of notice shall be submitted at least seven business days prior to the hearing.

(6)

The Board may refer an application pursuant to this section to any appropriate person or agency, for its report.