Borough of Chatham, NJ Article XIX Zoning Board of Adjustment and Planning Board

§ 165-153 Establishment of Zoning Board of Adjustment.

[Amended 12-14-1991 by Ord. No. 21-81]

A. The Zoning Board of Adjustment heretofore created is continued and is hereby established pursuant to the Municipal Land Use Law as the Zoning Board of Adjustment for the Borough.

[Amended by Ord. No. 2-80]

(1) It shall consist of seven members, who shall be residents of the Borough and shall be appointed by the governing body for terms of four years, each computed from January 1 of the year of their appointment, except full terms filled for the first time under this section shall be so fixed (for four or less years) and so arranged that to the greatest practicable extent the expiration of all terms will be distributed evenly over the first four years after the initial appointment.

(2) The governing body may also appoint two alternate members who shall be residents of the Borough and shall be designated by the governing body at the time of appointment as "Alternate No. 1 and Alternate No. 2." They shall be appointed by the governing body for terms of two years, each computed from January 1 of the year of their appointment, except full terms filled for the first time under this section shall be so fixed (for two or less years) and so arranged that to the greatest practicable extent, the expiration of all terms shall be distributed evenly over the first two years after the initial appointment. Alternate members may participate in discussions of the proceedings but 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 member is to vote, Alternate No. 1 shall vote.

B. No member of the Zoning Board of Adjustment shall hold any elective position within the municipality.

C. Any vacancy on said Board occurring other than by expiration of term shall be filled by appointment by the governing body of the municipality to serve for the unexpired term of the member whose term shall become vacant. A member may be removed by the governing body for cause but only after public hearing and other requested procedural due process protections.

D. Yearly, the Zoning Board of Adjustment shall organize by selecting from among its regular members a Chairman and Vice Chairman. The Board shall also select a Board Administrative Secretary who may or may not be a member of the Board or a municipal employee.

[Amended 3-11-2013 by Ord. No. 13-04]

E. The governing body shall make provisions in its budget and appropriate funds for the expenses of the Zoning Board of Adjustment.

F. The office of Zoning Board of Adjustment Attorney is hereby created. The Zoning Board of Adjustment may annually appoint to such office and fix compensation or rate of compensation of an attorney at law of New Jersey other than the Municipal Attorney.

G. The Zoning Board of Adjustment may also employ or contract for and fix the compensation of such experts and other staff and services 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.

H. The Zoning Board of Adjustment shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter.

I. Lack of quorum due to conflicts of interest. If the 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 Chair of the Planning Board shall make the choice.

[Added 4-25-2005 by Ord. No. 05-09]

§ 165-154 Powers and jurisdiction of the Zoning Board of Adjustment.

[Amended 12-14-1991 by Ord. No. 21-81]

A. The Zoning Board of Adjustment shall have the power to:

(1) Error or refusal. 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 officer of the municipality based on or made in the enforcement of this chapter.

(2) Exceptions or interpretations. Hear and decide, in accordance with the provisions of this chapter, requests for interpretation of the Zoning Map or Ordinance or for decisions upon other special questions upon which the Board is authorized to pass by any land development ordinance or official map.

(3) Variance of area or yard requirements. Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property; or by reason of exceptional topographic conditions; or by reason of other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulations of this chapter would result in peculiar and exceptional practical difficulties or to 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 any difficulties or hardship; provided, however, that no variance shall be granted under this subsection to allow a structure or use in an otherwise restricted district; 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 this chapter.

[Amended 4-25-2005 by Ord. No. 05-09]

(4) Variance of use regulations. Grant a variance to allow a structure or use in a district restricted against such structure or use in particular cases and for special reasons, but only by affirmative vote of at least 2/3 of the full authorized membership of the Board.

B. General provision. 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 Zoning Ordinance. Any application to the Zoning Board of Adjustment under 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.

C. Other powers. The Zoning Board of Adjustment shall have such powers as prescribed by law, including but not limited to, the following:

(1) Direct issuance of a building permit 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 Ordinance of the municipality whenever one or more parcels of land within said bed cannot yield a reasonable return to the owner unless a building permit is granted. The Board shall impose reasonable requirements as a condition of granting the building permit so as to promote the health, morals, safety and general welfare of the public.

(2) Direct issuance of a building permit 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 plan approved by the municipal Planning Board, or a street on a plan duly filed in the office of the County Recording Officer. The Board may grant such relief only where the enforcement of the statute requirement that a building lot abuts 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 emergency vehicles necessary for the protection of the health and safety and will protect any future street layout shown on the Official Map or on the general circulation plan element of the Municipal Master Plan.

[Amended 3-11-2013 by Ord. No. 13-04]

(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 or site plan approval or conditional use approval whenever the Zoning Board of Adjustment is reviewing an application for approval of a variance pursuant to § 165-154A(4) of this chapter; provided, however, that the exercise of subdivision and/or site plan review by the Zoning Board of Adjustment shall be restricted to that lot (or lots) upon which the proposed variant use is to be situated.

§ 165-155 Appeals and applications to Zoning Board of Adjustment.

[Amended 12-14-1981 by Ord. No. 21-81]

A. Appeal of decision of Borough Official and request for interpretation.

[Amended 3-11-2013 by Ord. No. 13-04]

(1) Appeal of decision of Borough Official.

(a) As provided under § 165-154A(1) of this chapter and N.J.S.A. 40:55D-70a and N.J.S.A. 40:55D-72a, an appeal may be taken to the Borough Zoning Board of Adjustment by any interested party affected by any decision or refusal made by a Borough Official based on or made in the enforcement of Borough Code Chapter 165 or the Borough's Official Zoning Map.

(b) A complete application under this § 165-155A(1) shall consist of the following: the Borough's application for appeal of a Borough Official's decision, Checklist F (with required documents),[1] the required filing fees and escrow as provided under § 165-166, and such other documents and information as may be required to define the action.

[1] Editor's Note: Said checklist is on file in the Borough offices.

(c) An appeal from a Borough Official's decision or refusal shall be filed within 20 days from the date of the decision or refusal made by the Borough Official.

(d) An action under this § 165-155A(1) shall be filed with the Borough Official from whom the appeal is taken with a copy to the Administrative Secretary of the Zoning Board of Adjustment. Filing fees and escrow monies pursuant to § 165-166 shall be provided to the Administrative Secretary of the Zoning Board of Adjustment, who will record payment of the fees and provide receipts.

(e) Within 10 days of the filing, the appellant shall serve a copy of the complete application upon any interested party. Proof of certified mailing with return receipt requested shall be required to confer jurisdiction on the Zoning Board of Adjustment. Notice requirements for an action under this § 165-155A(1) are stated in § 165-158E of this chapter.

(f) Within 10 days of the filing, the Borough Official from whom the appeal is taken shall transmit all available papers constituting the record of the underlying matter to the Administrative Secretary for distribution to the Zoning Board of Adjustment and to the appellant.

(g) If the appeal involves a matter which has been heard and decided in an open public meeting, the appellant shall order and pay for a certified transcript of the hearing, and shall file same with the Administrative Secretary as soon as available.

(h) In accordance with N.J.S.A. 40:55D-73, the Zoning Board of Adjustment shall render a decision on any application for development filed under this § 165-155A(1) not later than 120 days from the date of the decision or refusal made by the Borough Official.

(2) Request for interpretation.

(a) As provided under N.J.S.A. 40:55D-70b, the filing of a request for interpretation may be taken to the Borough Zoning Board of Adjustment by any party seeking an interpretation of any provision of Borough Code Chapter 165.

(b) A complete application pursuant to this § 165-155A(2) shall consist of the following: the Borough's application for request for interpretation, Checklist F (with all required documents),[2] the required filing fees and escrow under § 165-166, and such other documents and information as may be required to define the action.

[2] Editor's Note: Said checklist is on file in the Borough offices.

(c) A request for interpretation may be filed at any time, but any decision reached by the Zoning Board of Adjustment shall not be retroactively applied to existing construction or to a project that has been finally approved by either the Borough's Planning or Zoning Board of Adjustment.

(d) An action under this § 165-155A(2) shall be filed with the Administrative Secretary of the Zoning Board of Adjustment. Filing fees and escrow monies pursuant to § 165-166 shall be delivered to the Administrative Secretary, who shall record the payment of the fees and provide receipts.

(e) If a specific real property is identified with the request, notice of the filing of a request for interpretation describing the nature of the request shall be given by the applicant to the property owner at least 10 days before the hearing. Proof of service and certified mailing with return receipt requested shall be filed to confer jurisdiction on the Zoning Board. Notice requirements for an action under this § 165-155A(2) are stated in § 165-158E of this chapter.

(3) Filing requirements for appeal of decision of Borough Official or request for interpretation. Required items for filing of any action under this § 165-155A shall include, but are not limited to, all items under Checklist F[3] as follows:

(a) Complete application and Checklist F;

(b) List of all owners of the land which is the subject of the action. If owner is an entity, include a certificate of ownership listing the names and addresses of each person holding an interest of 10% or more in the entity. N.J.S.A. 40:55D-48.2.

(c) Four copies of certification signed by all land owner(s) consenting to the filing of the action.

(d) Four copies of a statement indicating the filing fees and escrows, and receipt(s) evidencing payment of same to the Borough.

(e) Writing of the Borough Official constituting the underlying decision or action which is appealed;

(f) Writing setting forth the specified Borough Ordinance(s) requested to be interpreted and any other information defining the action;

(g) A statement describing the filing party's interest in, and current status of such interest in, the land which is the subject of the action;

(h) A list of names and addresses of witnesses to be presented and their areas of expertise or lay testimony, if any are proposed;

(i) A sealed survey of the property which is the subject of the action, showing all current existing improvements, dated within the last 10 years of date of filing;

(j) A written statement describing the filing party's legal, zoning, and planning position with respect to the action, including specific reference to all applicable Borough ordinances or state statutes requested to be considered;

(k) Plans, photographs, or other documents providing any pictorial or supporting information to assist in rendering a decision on the action;

(l) Written statement specifically describing why each waiver requested in the Checklist should be granted; and

(m) All tangible evidence or items intended to be produced or relied upon by the filing party at the hearing.

[3] Editor's Note: Said checklist is on file in the Borough offices.

B. Applications for development before the Zoning Board of Adjustment. Applications for development before the Borough's Zoning Board of Adjustment shall be governed as follows:

[Amended 3-11-2013 by Ord. No. 13-04]

(1) Hearings for applications for development shall be conducted before the Zoning Board in accordance with § 165-158D of this chapter.

(2) As provided under § 165-154 of this chapter and N.J.S.A. 40:55D-70c and d and N.J.S.A. 40:55D-72b, a developer may file an application for development with the Zoning Board of Adjustment for action under any of its powers without prior application to a Borough Official.

(3) Variance relief. All applications solely for variance relief to the Zoning Board of Adjustment and not involving any related site plan, subdivision, or conditional use proposal, shall be filed at least 30 days before the meeting of the Board at which hearing is desired. A complete application shall include duplicate copies of all items set forth in § 165-165B and the fees and escrows in accordance with § 165-166 of this chapter. The Board shall act upon the application as stipulated under this chapter and pursuant to the Municipal Land Use Law.

(4) Filing requirements for applications for development are stated in §§ 165-162 and 165-163 of this chapter.

(5) Notice requirements for applications for development are stated in § 165-158E of this chapter.

(6) Fee and escrow requirements for applications for development are stated in § 165-166 of this chapter.

(7) Availability of applications for development for inspection and hearings for same shall be in accordance with § 165-158D of this chapter.

(8) In accordance with N.J.S.A. 40:55D-73, the Zoning Board of Adjustment shall render a decision on any application for development filed under this § 165-155B not later than 120 days from the date of submission of a complete application as confirmed in the certificate of completeness issued to the applicant by the Administrative Secretary of the Board. Failure of the Zoning Board to render a decision within such one-hundred-twenty-day period, or within such further time as may be consented to by the applicant, shall constitute either a decision favorable to the applicant or approval of the application, as the case may be.

C. (Reserved)[4]

[4] Editor’s Note: Former Subsection C, regarding the date for a decision, was repealed 3-11-2013 by Ord. No. 13-04.

D. Any appeal to the Zoning Board of Adjustment shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the officer from whose action the appeal is taken certifies to the Zoning 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 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.

E. In acting on any appeal, the Zoning 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 end have all the powers of the officer from whom the appeal is taken.

§ 165-156 Establishment of Planning Board.

[Amended 12-14-1981 by Ord. No. 21-81]

A. A Planning Board is hereby established consisting of nine members of the following four classes:

(1) Class I: The Mayor, or the Mayor's designee in the absence of the Mayor.

[Amended 4-25-2005 by Ord. No. 05-09]

(2) Class II: One of the officials of the municipality, other than a member of the governing body, to be appointed by the Mayor, provided that if there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall be deemed to be the Class II Planning Board member if there is both a member of the Zoning Board of Adjustment and a member of the Board of Education among the Class IV members.

(3) Class III: A member of the Borough Council to be appointed by the governing body.

(4) Class IV: Six other citizens of the municipality to be appointed by the Mayor. The members of Class IV shall hold no other municipal office, except that one member may be a member of the Zoning Board of Adjustment and one may be a member of the Board of Education. A member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A shall be a Class IV Planning Board member unless there be among the Class IV members of the Planning Board both a member of the Zoning Board of Adjustment and a member of the Board of Education, in which case the member of the Environmental Commission shall be deemed to be the Class II member of the Planning Board.

B. The term of the member composing Class I shall correspond to the Mayor’s official tenure, or if the member is the Mayor’s designee in the absence of the Mayor, the designee shall serve at the pleasure of the Mayor during the Mayor’s official tenure. The terms of the members composing Class II and Class III shall be for one year or terminated at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the Environmental Commission. The term of a Class II or Class IV member who is also a member of the Environmental Commission shall be for three years or terminate at the completion of his term of office as a member of the Environmental Commission, whichever comes first.

[Amended 4-25-2005 by Ord. No. 05-09]

C. The term of a Class IV member who is also a member of the Zoning Board of Adjustment or the Board of Education shall terminate whenever he is no longer a member of such other body or at the completion of this Class IV term, whichever comes first.

D. The terms of all Class IV members first appointed pursuant to this chapter shall be so determined that to the greatest practicable extent the expiration of such term shall be evenly distributed over the first four years after their appointment and as determined by resolution of the governing body; provided, however, that no term of any member shall exceed four years and further provided that nothing here shall affect the term of any present member of the Planning Board, all of whom shall continue in office until the completion of the terms of four years except as otherwise herein provided. All terms shall run from January 1 of the year in which the appointment was made.

E. If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointments as above provided for the unexpired term.

F. The Planning Board shall elect a Chairman and Vice Chairman from the members of Class IV and select a Board Administrative Secretary who may be either a member of the Planning Board or a municipal employee designated by it.

[Amended 3-11-2013 by Ord. No. 13-04]

G. The governing body shall make provisions in the budget and appropriate funds for the expenses of the Planning Board.

H. The office of Planning Board Attorney is hereby created. The Planning Board may annually appoint to such office and fix compensation or rate of compensation of an Attorney-at-Law of New Jersey other than the Municipal Attorney.

I. The Planning Board may also employ or contract for and fix the compensation of such experts and other staff and services 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.

J. The Mayor may appoint two alternate members, who shall meet the qualifications of Class IV members of the Planning Board. Alternate members shall be designated at the time of appointment by the Mayor 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.

[Added 3-10-1980 by Ord. No. 2-80]

K. Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member of any class. 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 member is to vote, Alternate No. 1 shall vote.

[Added 3-10-1980 by Ord. No. 2-80]

L. Lack of quorum due to conflicts of interest. If the Planning Board lacks a quorum because any of its regular or alternate members is prohibited N.J.S.A. 40:55D-23 or N.J.S.A. 40:55D-23 from acting on a matter due to the member's personal or financial interests therein, regular members of the Board of Adjustment shall be called upon to serve, for that matter only, as temporary members of the Planning Board in order of seniority of continuous service to the Board of Adjustment 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 regular members of equal seniority, the Chair of the Board of Adjustment shall make the choice.

[Added 4-25-2005 by Ord. No. 05-09]

§ 165-157 Powers and jurisdiction of Planning Board.

[Amended 12-14-1981 by Ord. No. 21-81]

A. The Planning Board shall have the powers listed below in addition to other powers established by law:

(1) Make, adopt, and from time to time amend a Master Plan for the physical development of the Borough, including any areas outside its boundaries which, in the Board's judgment, bear essential relation to the planning of the Borough.

(2) Participate in the preparation and review of programs or plans required by state or federal law or regulation.

(3) Assemble data on a continuing basis as part of a continuous planning process.

(4) Annually, at the direction of the governing body, may prepare a program of municipal capital improvements projects projected over a term of six years and amendments thereto and recommend same to the governing body.

(5) Consider and make report to the governing body within 35 days after referral as to any proposed development regulation submitted to it and also pass upon other matters specifically referred to the Planning Board by the governing body.

B. Whenever a proposed development requires approval of a subdivision, site plan, or conditional use, pursuant to the Municipal Land Use Law and the Borough of Chatham’s Land Development Regulations, the Planning Board shall have such other powers as prescribed by law, including, but not limited to, its ancillary powers as set forth in N.J.S.A. 40:55D-60, described as follows:

[Amended 8-11-2008 by Ord. No. 08-16]

(1) The power to grant variances pursuant to N.J.S.A. 40:55D-70(c);

(2) The power to direct the issuance of a permit for a building or structure in the bed of a mapped street or public drainage way, flood control basin, or public area pursuant to N.J.S.A. 40:55D-34;

(3) The power to direct the issuance of a permit for a building or structure not related to a street pursuant to N.J.S.A. 40:55D-36.

C. Parking layout review. When an existing commercial or industrial building is rebuilt or remodeled, a building permit shall not be issued until the existing and proposed parking layout and management of same has been submitted to the Borough Planning Board for review and approval. For this review, a parking plan shall be required in accordance with § 165-163C. If the applicant relies upon legal preexisting nonconformities in its parking, such position shall be set forth in writing and details and submitted for review.

[Added 3-11-2013 by Ord. No. 13-04]

D. Application for change of permitted use with waiver of site plan. The Planning Board may waive the filing of a site plan as follows:

[Added 3-11-2013 by Ord. No. 13-04]

(1) The Planning Board may waive the filing and review of a site plan as required under this chapter if the application is limited to a change of permitted use as defined in § 165-10.

(2) Notice is not required for an application for change of permitted use, as is permitted under the Municipal Land Use Law.

E. Required items for application for change of permitted use. Required items for filing of an application for change of permitted use with request for waiver of filing of site plan, § 165-157D, shall include, but are not limited to, all items under Checklist E[1] as follows:

[Added 3-11-2013 by Ord. No. 13-04]

(1) Completed and signed application and all applicable checklists;

(2) Certification signed by all landowner(s) consenting to the application;

(3) A statement indicating the filing fees and escrows pursuant to § 165-166 and receipt(s) evidencing payment of same to Borough; and

(4) The most recent site plan, if one exists, together with an affidavit of the property owner that there have been no changes at the property as depicted on the site plan.

[1] Editor's Note: Said checklist is on file in the Borough offices.

F. Applications for development before the Planning Board. Applications for development before the Borough's Planning Board shall be governed as follows:

[Added 3-11-2013 by Ord. No. 13-04]

(1) Hearings for applications for development shall be conducted before the Planning Board in accordance with § 165-158D of this chapter.

(2) As provided under § 165-157 of this chapter and N.J.S.A. 40:55D-70c, a developer may file an application for development with the Planning Board for action under any of its powers.

(3) Variance relief. All applications solely for variance relief to the Planning Board and not involving any related site plan, subdivision, or conditional use proposal, shall be filed at least 30 days before the meeting of the Board at which hearing is desired. The Board shall act upon the application as stipulated by law.

(4) Filing requirements for applications for development are stated in §§ 165-162 and 165-163 of this chapter.

(5) Notice requirements for applications for development are stated in § 165-158E of this chapter.

(6) Fee and escrow requirements for applications for development are stated in § 165-166 of this chapter.

(7) Availability of applications for development for inspection and conduct of hearings for same shall be in accordance with § 165-158D of this chapter, and in accordance with the Municipal Land Use Law, the Open Public Records Act and the Open Public Meetings Act. Availability of records for Planning Board matters shall also be in accordance with the duly adopted Rules and Regulations of the Planning Board, as amended from time to time. The Rules and Regulations of the Planning Board are Attachment 2 to this Chapter 165.[2]

[2] Editor's Note: Said rules and regulations are on file in the Borough offices.

(8) The time for the Planning Board to render a decision on an application for development shall be in accordance with the Municipal Land Use Law. All time periods shall run from the date of submission of a complete application for development as confirmed in the certificate of completeness issued to the applicant by the Administrative Secretary of the appropriate Board. The time of hearing and of the decision may be extended with the consent of the applicant.

§ 165-158 Provisions applicable to both Planning Board and Zoning Board of Adjustment.

A. Conflicts of interest. No member of the Planning Board or Zoning Board of Adjustment shall act on any matter in which he has either directly or indirectly any personal or financial interest. Whenever any such member shall disqualify himself from acting on a particular matter, he 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 Zoning Board of Adjustment shall be scheduled no less often than once a month, and any meeting so scheduled shall be held as scheduled unless cancelled for lack of applications for development to process or other business.

[Amended 4-25-2005 by Ord. No. 05-09]

(2) Special meetings may be provided for at the call of the Chairman or on the request of any two Board members, which shall be held on notice to its members and the public in accordance with all applicable requirements.

(3) Other than a call for adjournment, no action shall be taken at any meeting without a quorum being present, said quorum to be the majority of the full authorized membership of the Board.

(4) All actions shall be taken by majority vote of a quorum except as otherwise required by a provision of N.J.S.A. 40:55D-1 et seq.

(5) All meetings shall be open to the public. 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. Records.

(1) Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Planning Board or the Zoning Board of Adjustment, and of the persons appearing by attorney, the action taken by the Planning or Zoning Board, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available 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.

(2) A verbatim recording shall be made of every hearing. The recording of the proceedings shall be made by either stenographer, mechanical or electronic means. The municipality shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense.

D. Public hearings.

(1) The Planning Board or Zoning Board of Adjustment, as the case may be, shall hold a hearing on each application for development. Each Board shall make the 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 other 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 hearing, or such person as he may designate, shall have 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, 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 to 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.

E. Public notice of a meeting.

(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 the 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 § 165-154C(1) and (2).]

(d) Any request for site plan or subdivision approval involving one or more of the aforesaid elements.

(e) Any request for preliminary subdivision approval.

(f) Any appeal of the decision of a Borough Official pursuant to N.J.S.A. 40:55D-70a or request for interpretation pursuant to N.J.S.A. 40:55D-70b.

[Added 3-11-2013 by Ord. No. 13-04]

(2) The Board Administrative Secretary of the Planning Board or 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:

[Amended 3-11-2013 by Ord. No. 13-04]

(a) By publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality.

(b) To all owners of real property as shown on the current tax duplicate located within 200 feet in all directions of the property which is the subject of the hearing, which notice shall be given by serving a copy thereof on the property owner, as shown on the current tax duplicate, or his agent in charge of the property; or by mailing a copy thereof by certified mail to the property owner at his address as shown on the said current tax duplicate. It is not required that a return receipt be obtained. Notice is deemed complete upon mailing (N.J.S.A. 40:55D-14).

(c) Notice to a partnership owner may be made by service upon any partner; 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.

(d) To the Clerk of any adjoining municipality or municipalities when the property involved is located within 200 feet of said adjoining municipality or municipalities, which notice shall be given by personal service or certified mail.

(e) To the County Planning Board when the application for development involves property adjacent to an existing county road or proposed road shown on the County Official Map or the County Master Plan or adjoins other county land.

(f) To the Commissioner of Transportation of the State of New Jersey when the property abuts a State highway.

(g) To the Director of the Division of State and Regional Planning in the Department of Community Affairs when the hearing involves an application for 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 on file with the administrative officer.

(3) Upon the written request of an applicant, the Borough Tax Assessor shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners within the Borough to whom the applicant is required to give notice. The applicant shall be charged the fee provided in Chapter 129, Fees, Article III, § 129-15D(4) for said list and shall be entitled to rely upon the information contained in such list, and failure to give notice to any 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 Subsection E(2)(b) above who do not reside within the Borough.

[Amended 4-25-2005 by Ord. No. 05-09]

(4) The applicant shall file an affidavit or proof of service with the Planning Board or Zoning Board of Adjustment, as the case may be.

(5) The notice shall state the date, time and place of the hearing and the nature of the matters to be considered, and an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the Municipal Tax Assessor's Office, and the location and times at which any maps or documents for which approval is sought are available for inspection.

F. Lapse of permits. After the Construction Official has issued a permit, other than temporary or occupancy permits, or after the Zoning Board of Adjustment or Planning Board has varied the provisions of this chapter, the permit so issued or the variance so granted shall lapse after the expiration of one year if no substantial construction has taken place in accordance with the plans on the basis of which such permit was issued or variance granted, and a new permit or variance shall be obtained before the construction is started, except that after public hearing and finding that the delay is due to reasonable cause, the Zoning Board of Adjustment or Planning Board may grant one or more extensions for additional periods not exceeding six months each.

[Amended 3-13-1989 by Ord. No. 2-89]

G. Overlapping jurisdiction of Boards. The Planning Board and Zoning Board of Adjustment have the powers specified in Article XIX of this chapter. Certain of the respective powers of the Planning Board and Zoning Board of Adjustment overlap. The overlapping powers are as follows:

[Added 3-11-2013 by Ord. No. 13-04]

(1) Planning Board. The Planning Board shall have the power to act in lieu of the Zoning Board of Adjustment and subject to the same extent and restrictions of the Zoning Board of Adjustment on the following matters:

(a) Grant variances pursuant to N.J.S.A. 40:55D-70c from lot area, or from dimensions and setbacks requirements of a lot, provided that relief pursuant to this subsection from lot area requirements shall not be granted for more than one lot;

(b) Direct issuance of a permit for a building or structure in the bed of a mapped street, public drainageway, flood control basin, or public area, pursuant to N.J.S.A. 40:55D-34;

(c) Direct issuance of a permit for a building or structure not related to a street, pursuant to N.J.S.A. 40:55D-36.

(2) Zoning Board of Adjustment. 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, site plan, subdivision, or conditional use approval when reviewing an application for approval of a use variance pursuant to N.J.S.A. 40:55D-70d.

H. Notice of decision. Notice of any decision regarding an application for development by the Planning Board or Zoning Board of Adjustment, as the case may be, shall be given in the following manner:

[Added 3-11-2013 by Ord. No. 13-04]

(1) The Municipal Land Use Law shall govern the time within which the Planning Board or Zoning Board of Adjustment, as the case may be, shall render its decision on an application for development, as well as the time for the appropriate Board to adopt the memorializing resolution evidencing the Board's decision. An applicant may consent to extensions of time in writing or on the record in open public meeting.

(2) A copy of the decision shall be mailed by the Board within 10 days of the date of decision to the applicant, or if represented, then to the attorney, without separate charge. A copy of the decision shall also be mailed to any interested party who has requested it and who has paid the fee prescribed by the Borough for such service.

(3) A brief notice of every final decision shall be published in the official newspaper of the Borough. Such publication shall be arranged by the Administrative Secretary of the Planning Board or Zoning Board of Adjustment, as the case may be, and paid for by the applicant. The notice shall be sent to the official newspaper for publication within 10 days of the date of any such decision.

(4) A copy of the decision shall also be filed in the office of the Borough Planning Department, who shall make a copy of such filed decision available to any interested party upon payment of a fee calculated in the same manner as those established for copies of other public documents in the Borough.

I. Conditions of approval. Conditions of approval may be contained in the final adopted resolution of the applicable Board. An applicant shall ensure compliance with all conditions of approval, by submission of legal documents, revised plans, other governmental approvals, and other necessary documents, for review and approval by the appropriate Board's professionals. Board professionals shall issue compliance reports when necessary. The responsible Board Chairman, Board Secretary, and Administrative Board Secretary shall execute and witness documents as necessary for recording and filing with the county.

[Added 3-11-2013 by Ord. No. 13-04]

J. Time limits and extensions of time. Time limits for submissions required as a condition of approval may be set forth in the memorializing resolution of the Planning Board or Zoning Board of Adjustment, as the case may be, and/or governed by the Municipal Land Use Law. Extensions of such time shall be governed by the Municipal Land Use Law.

[Added 3-11-2013 by Ord. No. 13-04]

§ 165-159 Appeal of use variance approvals to Borough Council.

[Amended 12-14-1981 by Ord. No. 21-81; 3-11-2013 by Ord. No. 13-04]

A. Any interested party may appeal the approval of a use variance (N.J.S.A. 40:55D-70d) by the Zoning Board of Adjustment, to the Borough Council.

B. Such appeal shall be made within 10 days of the date of newspaper publication notice of the Zoning Board’s final approval by resolution, pursuant to the Municipal Land Use Law. The appeal shall be made by serving the Borough Clerk in person or by certified mail with a notice of appeal specifying the grounds thereof and the name and address of the appellant and his/her attorney, if represented. Within the time set forth in N.J.S.A. 40:55D-17c, the appellant shall arrange and pay for a transcript for use by the Borough Council and shall deliver seven copies of the transcript to the Borough Clerk.

C. Notice of the meeting of the Borough Council to review the record below shall be given by the Borough Clerk by personal service or certified mail to the appellant, to all those entitled to notice of a decision pursuant to N.J.S.A. 40:55D-10 and to the Zoning Board of Adjustment, at least 10 days before the date of the meeting when the appeal will be heard. The parties may submit oral and written arguments on the record at such meeting, and the Borough Council shall provide for verbatim recording of such meeting.

D. The appeal shall be decided by the Borough Council only upon the record established before the Zoning Board of Adjustment. The Borough Council shall conclude a review of the record below not later than 95 days from the date of receipt of the transcript of the hearing, unless the appellant consents in writing to an extension of such time period. Failure of the Borough Council to hold a hearing, conclude a review of the record below, and render a decision within such time period shall constitute a decision affirming the action of the Zoning Board of Adjustment.

E. The Borough Council may reverse, remand, or affirm, wholly or in part, or may modify the final decision of the Zoning Board of Adjustment. The affirmative vote of a majority of the full authorized membership of the Borough Council shall be necessary to reverse, remand, or modify any final action of the Board. The Borough Council’s vote and decision shall be rendered by way of a written resolution or by an oral decision made at an open public meeting which has been recorded verbatim.

F. Notice of any decision by the Borough Council regarding an appeal of the grant of a use variance shall be given in the following manner:

(1) A copy of the decision shall be mailed by the Borough Clerk within 10 days of the date of decision, without separate charge, to the appellant, or, if represented, then to the attorney, and to the applicant who was granted the use variance by the Zoning Board of Adjustment. A copy of the decision shall also be mailed to any interested party who has requested it and who has paid the fee prescribed by the Borough for such service.

(2) A brief notice of every final decision shall be published in the official newspaper of the Borough within 10 days of the date of any such decision. Such publication shall be arranged by the Borough Clerk, and paid for by the appellant.

(3) A copy of the decision shall also be filed in the office of the Borough Clerk and in the office of the Borough Planning Department, and such filed decision shall be available to any interested party upon payment of a fee calculated in the same manner as those established for copies of other public documents in the Borough.