A.
A Zoning Board of Adjustment is hereby established pursuant to N.J.S.A.
40:55D-1 et seq., consisting of seven residents of the City of East
Orange appointed by the Mayor and confirmed by the governing body
to serve for terms 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 terms 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. Four alternate members designated at the time of
their appointment as "Alternate No. 1," "Alternate No. 2," "Alternate
No. 3" and "Alternate No. 4" shall be appointed for a term not to
exceed two years.
B.
Nothing in this article shall, however, be construed to affect the
term of any present member of the Zoning Board of Adjustment.
C.
No member of the Zoning Board of Adjustment may hold any elective
office or position under the municipality.
D.
A vacancy occurring otherwise than by expiration of term shall be
filled for the unexpired term only.
E.
Alternate members.
(1)
Alternate members may participate in all matters but may not vote
except in the absence or disqualification of a regular member.
(2)
Participation of alternate members shall not be deemed to increase
the size of the Zoning Board of Adjustment.
(3)
A vote shall not be delayed in order that a regular member may vote
instead of an alternate member.
(4)
In the event that a choice must be made as to which alternate member
is to vote, alternate members are to vote in the order of their numerical
designations.
F.
If the Zoning Board of Adjustment lacks a quorum because any of its
regular or alternate members is prohibited by N.J.S.A. 40:55D-69 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 or may
not be a member of the Board of Adjustment or a municipal employee.
The Zoning Board of Adjustment may also employ or contract and
fix the compensation of such experts and other staff and offices as
it may deem necessary. The Board shall not authorize expenditures
which exceed, exclusive of gifts or grants, the amount appropriated
by the governing body for its use. It shall also receive advice and
information from staff of the City of East Orange as it may deem necessary.
A.
The Board shall adopt such rules and regulations as may be necessary
to carry into effect the provisions and purposes of this article.
B.
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.
A.
The powers of the Zoning Board of Adjustment shall be in accordance
with N.J.S.A. 40:55D-69 et seq., and amendments and supplements thereto,
and with the provisions of this chapter.
B.
It is further the intent of this chapter to confer upon the Zoning
Board of Adjustment as full and complete powers as may lawfully be
conferred upon such board, including, not by way of limitation, the
authority in connection with any case, action or proceeding before
the Board to interpret and construe the provisions of this chapter
or any term, clause, sentence or word thereof and the Zoning Map in
accordance with the general rules of construction applicable to legislative
enactments.
C.
The Board may, in appropriate cases and subject to appropriate conditions
and safeguards, grant variances from the terms of this chapter in
accordance with the general or specific rules contained herein and
with the general rules hereby laid down that equity shall be done
in cases where the strict construction of the provisions of this chapter
would work undue hardship. The powers and duties of the Board having
been delegated to and imposed upon it by statute, the Board shall
in all cases follow the provisions as applicable to it in said N.J.S.A.
40:55D-1 et seq., or subsequent statutes in such case made and provided,
and the Administrative Officer shall from time to time furnish to
any person requesting the same a copy of its rules and information
as to how appeals or applications may properly be filed with the Board
for its decision thereon.
D.
The Zoning Board of Adjustment shall have such powers as are granted
by law to:
(1)
Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of Chapter 51, Land Use.
(2)
Hear and decide requests for interpretation of the Zoning Map or
this chapter or for decisions on other special questions upon which
such board is authorized by ordinance to pass.
(3)
Grant "C" variances pursuant to N.J.S.A. 40:55D-70c.
(a)
General provisions.
[1]
The fact that a proposed use is an inherently beneficial use
shall not be dispositive of a decision on a variance under this subsection.
[2]
No variance from those departures enumerated in Subsection D(4) ("D" variances) of this section shall be granted under this subsection.
[3]
No variance shall be granted under this subsection for proposed
development that requires approval by the Planning Board of a subdivision,
site plan or a conditional use in conjunction with which the Planning
Board has power to review a request for a variance pursuant to N.J.S.A.
40:55D-60.
(b)
"C(1)" or "hardship" variances. The Zoning Board of Adjustment may grant, upon an application or an appeal relating to a specific piece of property, a variance from the strict application of any regulation in this chapter that would result in peculiar and exceptional practical difficulties or exceptional and undue hardship upon the developer of such property, subject to the provisions of Subsection D(3)(a) of this section, by reason of one or more of the following conditions:
[1]
By reason of exceptional narrowness, shallowness or shape of
a specific piece of property, pursuant to N.J.S.A. 40:55D-70c(1)(a);
or
[2]
By reason of exceptional topographic conditions, pursuant to
N.J.S.A. 40:55D-70c(1)(b); or
[3]
By reason of other extraordinary and exceptional situation or
condition of such piece of property or the structures lawfully existing
thereon, pursuant to N.J.S.A. 40:55D-70c(1)(c).
(c)
"C(2)" or "substantial benefit" variances. The Zoning Board of Adjustment may grant a variance to allow departure from regulations under this chapter pursuant to N.J.S.A. 40:55D-70c(2) where in an application or appeal relating to a specific piece of property the purposes of this act or the purposes of the Educational Facilities Construction and Financing Act, N.J.S.A. 18A:7G-1 et seq., would be advanced by a deviation from this chapter's requirements and the benefits of the deviation would substantially outweigh any detriment, subject to the provisions of § 51-20D(3)(a).
(4)
Grant "D" variances pursuant to N.J.S.A. 40:55D-70d. The Zoning Board
of Adjustment may only by the affirmative vote of at least five members
of the Board grant a variance to allow departure from regulations
in this chapter in the particular cases and for the special reasons
specified below:
(a)
To permit a use or principal structure in a district restricted
against such use or principal structure pursuant to N.J.S.A. 40:55D-70d(1);
or
(b)
To permit an expansion of a nonconforming use pursuant to N.J.S.A.
40:55D-70d(2); or
(c)
To permit a deviation from a specification or standard pertaining
solely to a conditional use pursuant to N.J.S.A. 40:55D-70d(3); or
(d)
To permit an increase in the permitted floor area ratio pursuant
to N.J.S.A. 40:55D-70d(4); or
(e)
To permit an increase in the permitted density, 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 pursuant to N.J.S.A. 40:55D-70d(5);
or
(f)
To permit a height of a principal structure which exceeds by
10 feet or 10% the maximum height permitted in the district for a
principal structure pursuant to N.J.S.A. 40:55D-70d(6).
(6)
All requests for use variances shall be governed by the standard
of the most restrictive district in which said use is permitted.
E.
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 this chapter. 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 granting of all required
subsequent approvals by the 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 this chapter. The number
of votes of Board members required to grant any such subsequent approval
shall be as otherwise provided in this chapter for the approval in
question. The application requesting approval of the variance shall
be accepted as complete when the Administrative Officer determines
that the information presented is clearly shown, subject to any request
of the Board of Adjustment for additional information before making
a decision.
F.
No variance or other relief may be granted permitting the creation
or establishment of a nonconforming use which would be prohibited
in any airport safety zone pursuant to the Air Safety and Zoning Act
of 1983 (N.J.S.A. 6:1-80 et seq.), except upon issuance of a permit
by the Commissioner of Transportation of the State of New Jersey.
G.
Any application under any subsection of this section may be referred
to any appropriate person or agency, including 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.
H.
The Zoning Board of Adjustment shall, in addition to the powers specified in Subsection D of this section, have power given by law to:
(1)
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.
(2)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a
building or structure not related to a street.
I.
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 or site plan approval pursuant to N.J.S.A. 40:55D-37 et seq. (Article 6), 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 Subsection D(4) of this section.
A.
Appeals to the Zoning 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 this chapter or
Official Map. Such appeal shall be taken within 20 days of the decision
of the Administrative Officer 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 papers constituting the record upon which
the action appealed from 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 the Administrative Officer. Applications addressed to the original
jurisdiction of the Board of Adjustment without prior application
to an administrative officer shall be filed with the Secretary of
the Board of Adjustment. Four copies of the application shall be filed.
At the time of filing the appeal or application, but in no event less
than 10 days prior to the date set for hearing, the applicant shall
also file all plot plans, maps or other papers required by virtue
of any provision of this chapter or any rule of the Board of Adjustment.
The applicant shall obtain all necessary forms from the Administrative
Officer, who shall inform the applicant of the steps to be taken to
initiate proceedings and of the regular meeting dates of the Board.
C.
An appeal stays all proceedings in furtherance of the action in respect
of which the decision appealed from was made unless the officer from
whom the appeal is taken certifies to the Zoning 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 otherwise than by a restraining order, which may
be granted by the Board of Adjustment or by the Superior Court of
New Jersey on application or notice to the officer from whom the appeal
is taken and on due cause shown.
D.
The Zoning Board of Adjustment shall, at least once each year, review
its decisions on applications and appeals for variances and prepare
and adopt by resolution a report on its findings on chapter provisions
which were the subject of variance requests and its recommendations
for chapter amendment or revision, if any. The Zoning Board of Adjustment
shall send copies of its report and resolution to the governing body
and the Planning Board.
In exercising the above-mentioned power, the Board of Adjustment
may, in conformity with provisions of N.J.S.A. 40:55D-1 et seq., or
amendments thereto or subsequent statutes, apply, reverse, affirm,
wholly or partly, or may modify the order, requirement, decision or
determination appealed from and make such order, requirement, decisions
or determination as ought to be made, and to that end have all the
powers of the administrative officer from whom the appeal was taken.
