A.
A Zoning Board of Adjustment is hereby established pursuant to N.J.S.A.40:55D-69
et seq. consisting of seven regular members and two alternate members
appointed by the governing body to serve for terms of four years from
January 1 of the year of their appointment, provided that the term
of any alternate member shall not exceed two years. Alternate members
shall be designated at the time of appointment as Alternate No. 1
and Alternate No. 2. The terms of the members first appointed shall
be so determined that to the greatest practical extent the expiration
of such terms shall be distributed evenly over the first four years,
and in the case of alternate members, evenly over the first two years,
provided that the initial term of no regular member shall exceed four
years and that the initial term of no alternate member shall exceed
two years. Thereafter, the term of each regular member shall be for
four years and the term of each alternate member shall be for two
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 completion of the term
for which they were appointed.
(1)
Alternate members may participate in discussion 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 member is to vote, Alternate No.
1 shall vote.
(2)
No member of the Zoning Board of Adjustment may hold an elected office
or position under the Borough.
(3)
A vacancy occurring otherwise than by expiration of term shall be
filled for the unexpired term only. No member of the Zoning Board
of Adjustment 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 governing body for cause.
B.
If the Zoning Board of Adjustment lacks a quorum because any of its
regular or alternate members is prohibited 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 Zoning 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 Chairperson
of the Planning Board shall make the choice.
The Zoning Board of Adjustment shall annually elect a Chairperson
and Vice Chairperson from its members and shall also select a Secretary
who may or may not be either a Board member or a municipal employee.
There is hereby created the office of Attorney to the Zoning
Board of Adjustment. The Zoning Board of Adjustment may annually appoint,
fix the compensation of or agree upon the rate of compensation of
the Zoning Board of Adjustment Attorney, who shall be an attorney
other than the Municipal Attorney.
The Zoning Board of Adjustment may also employ or contract for
the services of experts and other staff and services, as it may deem
necessary. The Board shall not exceed, exclusive of gifts or grants,
the amount appropriated by the governing body for its use.
The Board shall adopt such rules and regulations as may be necessary
to carry into effect the provisions and purposes of this chapter.
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.
The Zoning Board of Adjustment is authorized to adopt bylaws
governing its procedural operation. It shall also have the following
duties and powers:
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 Chapter 28, Zoning, of the Code of the Borough of Lincoln Park, or any term, clause, sentence or word hereof, 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 any appropriate conditions and safeguards, grant variances from the terms of Chapter 28, Zoning, 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 that 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 applicable to it by the Act or subsequent statutes in such cases made and provided, and it 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.
A.
Appeals. Appeals to the Zoning Board of Adjustment may be taken by
any person aggrieved or by an officer, department, board or bureau
of the Borough affected by any decision of the Administrative Officer
or Building Inspector. Each appeal shall be taken within 20 days by
filing a notice of appeal with the officer from whom the appeal was
taken, together with three copies of said notice with the Secretary
of the Zoning Board of Adjustment. Said notice of appeal shall specify
the grounds of said appeal. The officer from whom the appeal was taken
shall forthwith transmit to the Board all the papers constituting
the record upon which the action appealed from was taken.
B.
Application for development. 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 the Administrative Officer or Building Inspector. Development review procedures shall be in accordance with Articles IV, VI, VII, VIII, IX, X, XII, XIV, XV and XVI of this chapter. The developer shall obtain all necessary forms from the Administrative Officer.
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 an order of the Superior Court.
In exercising the above-mentioned power, the Zoning Board of
Adjustment may, in conformity with the provisions of the Act or amendments
thereto or subsequent statute applying, reverse or affirm wholly or
partly or may modify the action, order, requirement, decision, interpretation
or determination appealed from, and make such other requirement, decision
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.
Any variance from the terms of Chapter 28, Zoning, hereafter granted by the Zoning Board of Adjustment permitting the erection or alteration of any structure or structures or permitting a specified use of any premises shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by said variance or unless such permitted use has actually been commenced within one year from the date of entry of the judgment or determination of the Zoning Board of Adjustment; except, however, that the running of the period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the Zoning Board of Adjustment to the governing body, or to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding, except, further, in the case of a variance which also involves a subdivision or site plan approval, the variance shall extend for the full period of preliminary or final approval or any extensions thereof pursuant to the Act.
A.
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 28, Zoning, of the Code of the Borough of Lincoln Park.
(3)
Variances.
(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 structure lawfully
existing thereon, the strict application of any regulation would result
in peculiar and exceptional practical difficulties to, or exceptional
and undue hardship upon, the developer of such property, grant a variance
from such strict application of such regulation so as to relieve such
difficulties of hardship.
(b)
Where in an application or appeal relating to a specific piece of property the purposes of the Act would be advanced by a deviation from the requirements of Chapter 28, Zoning, and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from the regulations; 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 Subsection A(4) of this section shall be granted under this subsection, 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 has power to review a request for a variance pursuant to N.J.S.A. 40:55D-60a.[1]
(4)
In
particular cases and for special reasons, grant a variance to allow
departure from regulations to permit:
(a)
A use or principal structure in a district restricted against
such use or principal structure;
(b)
An expansion of a nonconforming use;
(c)
Deviation from a specification or standard pursuant to N.J.S.A.
40:55D-67 pertaining solely to a conditional use;
(d)
An increase in the permitted floor area ratio as defined in
N.J.S.A. 40:55D-4;
(e)
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
C.
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 Chapter 28, Zoning. In respect of any airport hazard areas delineated under the Air Safety and Hazardous Zoning Act of 1983, P.L. 1983, c. 260 (N.J.S.A. 6.1-80 et seq.), no variance or other relief may be granted under the terms of this section permitting the creation or establishment of a nonconforming use which would be prohibited under the standards promulgated pursuant to the Act except upon issuance of a permit by the Commissioner of Transportation. An application under this section may be referred to any appropriate person or agency for its report, provided that such references shall not extend the period of time within which the Zoning Board of Adjustment shall act.
D.
Votes required. All actions shall be taken by a majority vote of the members of the Board present, except that five affirmative votes shall be necessary to approve a variance pursuant to Subsection A(4) (N.J.S.A. 40:55D-70). Failure of a motion to receive the number of votes required pursuant to Subsection A(4) shall be deemed an action denying the application.
The Zoning Board of Adjustment shall, in addition to the powers specified in § 17-3.6 of this article, have power given by law to:
A.
Direct, by an affirmative vote of a majority of the fully authorized
members, 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.
B.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a
building or structure not related to a street.
(1)
The Zoning Board of Adjustment shall not exercise the power otherwise granted by Subsections A and B above if the proposed development requires approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board has power to direct the issuance of a permit pursuant to N.J.S.A. 40:55D-60, Subsection b and c.
C.
Grant to the same extent and subject to the same restrictions as the Planning Board subdivision or site plan approval pursuant to Article 6 of the Act whenever the proposed development requires approval by the Zoning Board of Adjustment of a variance pursuant to Subsection A(4) of § 17-3.10 of 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 grant of all required subsequent approvals by the Zoning 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 Chapter 28, Zoning. The number of votes of Board members required to grant such subsequent approval shall be as otherwise provided in the Act for the approval in question, and the special vote pursuant to the aforesaid Subsection A(4) of § 17-3.10 of this chapter shall not be required.[1]
If the literal enforcement of one or more provisions of this
chapter is impracticable or will exact undue hardship because of peculiar
conditions pertaining to the land in question, the Zoning Board of
Adjustment, when acting upon applications for major or minor subdivision
approval, shall have the power to grant such exemptions from the requirements
for subdivision approval, and to the same extent, when acting upon
major or minor site plan or conditional use approval, shall have the
power to grant such exceptions from the respective applicable requirements
hereof, all as may be reasonable and within the general purpose and
intent of the provisions of this chapter.
The Zoning Board of Adjustment shall render a decision not later than 120 days after the date an appeal is taken from the decision of the Administrative Officer or Building Inspector or the filing date or date a development proposal is received for filing by formal action of the Zoning Board of Adjustment; thereafter, whenever an application for development requests relief pursuant to § 17-3.11C of this chapter, the Zoning Board of Adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the Administrative Officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise provided in this chapter. Failure of the Zoning Board of Adjustment to act within the period prescribed shall constitute approval of the application, and a certificate of the Administrative Officer as to the failure of the Zoning 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.
Any interested party may appeal to the governing body any final decision of the Zoning Board of Adjustment approving an application for development pursuant to § 17-3.10A(4) (N.J.S.A. 40:55D-70d). Appeals shall be taken in accordance with the procedures established by N.J.S.A. 40:55D-17.
