Editor's Note: Ord. No. 2-2008 eliminated the Zoning Board of Adjustment. Section I of such ordinance provided the following: "Pursuant to the New Jersey Municipal Land use Law at N.J.S.A. 40:55D-25(c), the Mullica Township Zoning Board of Adjustment is hereby abolished and the duties and powers of said board shall be hereinafter vested in the Mullica Township Planning Board. The Planning Board shall thus exercise, to the same extent and subject to the same restrictions, all of the powers of said Board of Adjustment, but the Class I and Class III members shall not participate in the consideration of applications for development which involve relief pursuant to Subsection (d) of Section 58 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-70)."
Pursuant to the provisions of N.J.S.A. 40:55D-69, Zoning Board of Adjustment, also known as the Board of Adjustment, is hereby established and shall consist of seven members.
The members of the Board of Adjustment shall be appointed by the Township Committee. 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 evenly over the first four years after their appointment. Thereafter, the term of each member shall be four years. No member shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. A member may, after public hearing if he requests it, be removed by the Township Committee for cause. A vacancy occurring otherwise than by expiration of a term shall be filled for the unexpired term only. A member shall serve for a term of four years from January 1 of the year of his/her appointment. The terms of the members first appointed shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be distributed evenly over the first four years after their appointment, provided that the initial term of any member shall not exceed four years. Thereafter, the term of each member' shall be for four years. Nothing in this chapter shall, however, be construed to affect the term of any present member of the Zoning Board of Adjustment, all of whom shall continue in office until the completion of the term for which they were appointed.
The Board of Adjustment shall elect a chairman and vice chairman from its members and select a secretary who may or may not be a member of the Board of Adjustment or a municipal employee.
No member of the Zoning Board of Adjustment may hold any elective office or position in the municipality.
A member of the Board who was absent from one or more of the meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his/her absence from one or more meetings; provided, however, that such Board member has available to him the transcript or recording of the meeting 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.
The Township Committee may appoint two alternates to the Zoning Board of Adjustment for terms of two years. Such alternate members shall be designated by the Township Committee as "Alternate No. 1" and "Alternate No. 2."
The terms of the alternate members shall be for two years, except that the terms of the alternate members shall be such that the term of not more than one alternate member shall expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. A vacancy occurring otherwise than by expiration of term shall be filled by the Mayor for the unexpired term only.
No alternate member shall be permitted to act on any matter in which he/she has either directly or indirectly, any personal or financial interest. An alternate member may, after public hearing if he/she requests one, be removed by the governing body for cause.
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 is to vote, Alternate No. 1 shall vote.
The Board of Adjustment shall have the power to:
Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by construction official or zoning officer based on or made in the enforcement of Article XII, Zoning Districts and Permitted Uses, of this chapter.
Hear and decide in accordance with the provisions of the zoning articles of this chapter, requests for interpretation of the zoning map or zoning articles of this chapter or for decisions upon other special questions upon which such board is authorized to pass by the zoning or official map articles of this chapter.
Where by reason of exceptional narrowness, shallowness or shape of specific piece of property, or by reason of exceptional topographic condition, or by reason of other extraordinary and exceptional situation or condition of such piece of property the strict application of any regulation pursuant to Article XII, Zoning Districts and Permitted Uses, 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 appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship; provided, however, that no variance shall be granted under this subsection to allow a structure or use in a district restricted against such structure or use; 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 shall review a request for a variance pursuant to § 144-17, Ancillary powers, of this chapter.
Any municipal variance approval which grants relief from the density or lot area requirements set forth in Schedule of District Regulations for a residential or principal nonresidential use in the NV, NVC, EVC, SV, EV, WV or PT Districts shall require that Pinelands Development Credits be used for all dwelling units or lots in the excess of that permitted without the variance.
Editor's Note: The Schedule of District Regulations is included at the end of this chapter.
Grant variance to allow a structure or use in a district restricted against such structure in particular cases and for special reasons, but only by an affirmative vote of at least two-thirds of the full authorized membership of the Board.
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 the purpose of the zone plan and Zoning Ordinance. An application under this section may be referred to any appropriate person or agency, including the Planning Board pursuant to Subsection F of § 144-29, Other powers of Board of Adjustment, of this chapter, for its report; provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.
The Board of Adjustment may employ, or contract for, and fix the compensation of legal counsel, other than the municipal attorney, a license planning consultant, a licensed engineer, and other staff and services as it shall deem necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the Township for its use.
Appeals to the Board of Adjustments may be taken by any interested party affected by any decision of the Zoning Officer of the Township based on or made in the enforcement of the Zoning Ordinance or Official Map. Such appeal shall be taken within 20 days by filing an appeal with the Zoning Officer 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 from was taken.
An applicant may file an application for development with the Board of Adjustment for action under any of its powers without prior application to the Zoning Officer.
If an application for development is filed with the Board of Adjustment, whether or not an appeal from a decision of the Zoning Officer is also taken, the applicant shall submit 12 copies of his/her completed application to the secretary of the Board of Adjustment. The time for the Board's review shall not begin to run until the submission of a complete application with the required fee. Unless the applicant is informed in writing by the secretary of the Board of Adjustment within 45 days of the actual submission of the application that it is incomplete, said application shall be deemed complete as of the date it was submitted.
A complete submission for development under this article shall consist of the following:
A properly completed variance information application form.
If subdivision and/or site plan and/or conditional use approval is also sought as part of an application for a variance pursuant to Subsection B of § 144-23, Powers, of this chapter, the application shall conform to the procedures of Article VIII, § 144-51, Pinelands Area Procedures; applicability, and include the information and documents required pursuant to the provisions of Article VIII, § 144-52, Submittal procedure, of this chapter.
Where a subdivision and/or site plan approval is not required, a plat plan will be presented, drawn to scale of not less than 100 feet to the inch, on one or more sheets, illustrating existing structures and the proposed construction, reconstruction, remodeling, alteration or moving and including the following:
Property boundary lines and dimensions of the property and any significant topographic or physical features of the property;
A copy of the current deed for the property;
The location, size, use and arrangement of proposed buildings and of existing buildings which will remain, if any, including height in stories and feet, floor area ratio, total floor area, total square feet of ground area coverage and number and size of dwelling units, by number of bedrooms;
Minimum yard dimensions and, where relevant, relations of yard dimensions to the height of any building structure;
The location, dimensions and number of all driveways, entrances, curb cuts, parking stalls, loading spaces and access aisles and the total lot coverage of all parking, loading, driveway and aisle areas;
The location, and height of fences or screen plantings and the type or kind of building materials or plantings to be used for fencing or screening;
The location, designation and total area of all usable open space;
The location, use and size of structures and other land uses within 200 feet of the boundaries of the subject property;
A clear designation of the features of the proposed development or use which requires a variance and the extent of the variance requested; and
Any other information that may be required to be shown on the site plan by the Board of Adjustment to determine that the application is in compliance with the codes and ordinances of the Township.
The secretary of the Board of Adjustment shall distribute the application for review and report and, where required, approval as follows:
The Board of Adjustment shall render a decision not later than 120 days after the date an appeal is taken from the decision of the Zoning officer; or the submission of a complete application for development to the Board of Adjustment pursuant to Article V, § 144-25, Appeals and applications, of this chapter.
Failure of the Board to render a decision within such 120 days period or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.
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 extent 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 municipal official 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/her opinion, cause imminent peril to life or property. In such case, proceeding 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.
Sections 144-25 through 144-28 of this chapter shall apply to the power of the Board of Adjustment to:
Direct issuance of a permit pursuant to Article III, Subsection B of § 144-12, Official Map, of this chapter for a building or structure in the bed of a mapped street or public drainage way, flood control basin or public area reserved pursuant to Article III, Subsection A of § 144-12, Official Map, of this chapter; or
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 Article VIII, Development Review and Approval, and Article XI, Design, Performance and Evaluation Standards, of this chapter whenever the Board of Adjustment is reviewing an application for approval of a variance pursuant to Subsection D of § 144-23, Powers, of this chapter.
Whenever an application for development requests relief pursuant to Subsection B of this section, the Board of Adjustment shall grant or deny approval of the application within 120 days after submission by a applicant of a complete application to the secretary of the Board of Adjustment 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 of Adjustment 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.
Whenever review or approval of the application by the County Planning Board is required by Section 5 of P.L. 1968, c. 285, in the case of a subdivision, or Section 8 of P.L. 1968, c. 285, 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.
An 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.
The Board of Adjustment may refer any application for subdivision or site plan approval under this section to the Planning Board for its report before it takes final action thereon. Such reference shall not extend the time for action by the Board of Adjustment, whether or not the Planning Board has submitted its report. Whenever the Planning Board shall have made a recommendation regarding a matter authorized by this chapter to the Board of Adjustment, such recommendation may be rejected only by a majority of the full authorized membership of the Board of Adjustment.