[Ord. No. 1992-1 § 2; Ord. No. 2001-15 § 5]
The Zoning Board of Adjustment shall have the powers listed below in addition to other powers established by law. Since the powers and jurisdiction of the Zoning Board of Adjustment have been delegated to and imposed upon it by the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.), the Zoning Board of Adjustment shall in all cases follow the provisions applicable to it in said statute or subsequent statute(s) in such case made and provided.
A. Error or Refusal. Hear and decide appeals where it is alleged by the applicant that there is an error in any order, requirement, decision or refusal made by an official based on or made in the enforcement of the zoning provisions of this ordinance.
B. Exceptions or Interpretations. Hear and decide requests for interpretation of the Zoning Map or the zoning provisions of this ordinance or for decisions upon other special questions upon which the Board is authorized to pass by any zoning provisions of this ordinance or by any duly adopted Official Map.
C. General Bulk Variances.
1. Where (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation of this ordinance would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship.
2. Where, in an application or appeal relating to a specific piece of property the purposes of this ordinance would be advanced by a deviation from the zoning requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from such zoning requirements.
3. No variance from those departures enumerated in § 702.D hereinbelow (N.J.S.A. 40:55D-70[d]) 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 § 705.J of this ordinance (N.J.S.A. 40:55D-60[a]).
D. Use Variance, Variances From Conditional Use Standards, and Major Specific Bulk Variances. In particular cases and for special reasons, grant a variance to allow departure from the zoning provisions of this ordinance to permit:
1. A use or principal structure in a district restricted against such use or principal structure;
2. An expansion of a nonconforming use;
3. A deviation from a particular specification or standard set forth in this ordinance as pertaining solely to a conditional use;
4. An increase in the permitted floor area ratio as defined in this ordinance and in N.J.S.A. 40:55D-4;
5. An increase in the permitted density as defined in this ordinance, and 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, in which event applications would be made pursuant to § 702.C hereinabove; or
6. A height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the zoning district for the principal structure.
A variance under this subsection shall be granted only by affirmative vote of at least five members of the Board.
E. General Provisions.
1. No variance or other relief may be granted by the Board 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 the zoning provisions of this ordinance.
2. In respect of any airport hazard areas delineated under the "Air Safety and Hazardous Zoning Act of 1983" (N.J.A.C. 6:1-80 et seq.), no variance or other relief may be granted permitting the creation or establishment of a nonconforming use which would be prohibited under the standards promulgated pursuant to that act, except upon issuance of a permit by the Commissioner of Transportation.
3. An application under this section may be referred by the Zoning Board of Adjustment 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.
4. The Zoning Board of Adjustment, in granting any variance which by law it is authorized to grant, may impose such conditions, in addition to those required in this ordinance, as are necessary to assure that the general purposes and intent of this ordinance are met. Such conditions may include, but are not limited to, harmonious design of buildings, maintenance of a sign or sound screen, the minimizing of noxious, offensive or hazardous elements, preservation of natural features, landscaping, and the posting of performance guarantees of the nature required in this ordinance to assure compliance with the requirements that will survive initial construction and the issuance of the Certificates of Occupancy.
5. All variances shall expire within one year from the date of the variance approval unless the owner shall have secured a construction permit and shall have commenced construction in conformity with the variance approval, including any conditions attached to the approval. For variances which become the subject of litigation, the one-year period shall commence on the date of the last reviewing court's decision to grant the variance. For good cause shown, and after a hearing before the Board on notice in the manner required for original variance applications, the Zoning Board of Adjustment may extend the variance by resolution. Any extension may not exceed one year in duration and no more than four extensions shall be permitted. To receive consideration, an application for extension of a variance shall be made prior to the expiration of the time limit sought to be extended. Anything herein to the contrary notwithstanding, any variance granted with a site plan, subdivision, and/or conditional use approval shall expire with the expiration of the site plan, subdivision, and/or conditional use approval.
6. Any municipal variance approval which grants relief from the density or lot area requirements set forth in §§ 403.D, 404.D, 405.D, 414.D, 415.D and 416.D for the GMS, GD, RGD-1, RS-1, HVR, VRD or RHO Districts shall require that Pinelands Development Credits be used for all dwelling units or lots in excess of that permitted without the variance.
7. Any variance or other approval for a residential use in the HC-1, HC-2, CC, RC, PI or HVC Zones shall require that Pinelands Development Credits be used for 50% of the authorized units for parcels under 10 acres in size; for 75% of the authorized units for parcels between 10 and 20 acres in size and for 100% of the authorized units for parcels over 20 acres in size.
8. Any municipal variance or other approval for the development of a nonresidential use not otherwise permitted in the GMS, GD, HVR or VRD Zones shall require that Pinelands Development Credits be used at 50% of the maximum rate permitted for Pinelands Development Credit use in the zone in which the nonresidential use will be located for parcels under 10 acres in size; at 75% of the maximum rate for parcels between 10 and 20 acres in size; and at 100% of the maximum rate for parcels over 20 acres in size. This requirement shall not apply to a variance or other approval which authorizes the expansion of or changes to existing nonresidential uses in accordance with N.J.A.C. 7:50-5.2.
F. Other Powers. The Zoning Board of Adjustment shall have such other powers as prescribed by law, including, but not limited to, the following:
1. Direct issuance of a construction permit pursuant to N.J.S.A. 40:55D-34 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, if an Official Map is adopted by the Township, whenever one or more parcels of land within said bed cannot yield a reasonable return to the owner unless a construction permit is granted. The Board may grant such relief only by affirmative vote of a majority of the full authorized membership of the Zoning Board of Adjustment, ensuring that such relief will tend to cause a minimum change of the Official Map and will not significantly add to the cost of opening any proposed street. The Board shall impose reasonable requirements as a condition of granting the construction permit so as to promote the health, morals, safety and general welfare of the public.
The Zoning Board of Adjustment shall not exercise the power otherwise granted herein 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 the permit pursuant to N.J.S.A. 40:55D-60b and Subsection 705.J.2 of this ordinance.
2. Direct issuance of a construction permit pursuant to N.J.S.A. 40:55D-36 for the construction of a building or structure on a lot not abutting a street which is shown on a duly adopted Official Map, if an Official Map is adopted by the Township, or which is (a) an existing State, County or municipal street or highway; or (b) a street shown upon a plat approved by the municipal Planning Board; or (c) a street on a plat duly filed in the office of the County Recording Officer. The Board may grant such relief only when the enforcement of the statute requirement that a building lot abut 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 necessary emergency vehicles for the protection of the health and safety and that will protect any future street layout on the Official Map or on the Traffic Circulation Plan element of the municipal Master Plan.
The Zoning Board of Adjustment shall not exercise the power otherwise granted herein 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-60c and Subsection 705.J.3 of this ordinance.
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, site plan or conditional use approval whenever the proposed development requires approval by the Zoning Board of Adjustment of a variance pursuant to § 702.D of this ordinance. 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 a 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 the zoning provisions of this ordinance. The number of votes of Board members required to grant such subsequent approval shall be as otherwise provided in this ordinance for the approval in question, and the special vote pursuant to § 702.D of this ordinance shall not be required.