It is the intent of this Article to set forth the procedures for the various appeals to the Planning Board, Zoning Board of Adjustment and the Borough Council as permitted by this chapter. In addition to the procedures set forth in the following sections for each type of appeal, the procedures set forth for review of site plan and subdivision applications in Article VII of this chapter shall apply, unless the context clearly indicates otherwise or unless contrary to law, including but not necessarily limited to the following:
Appeals to the Zoning Board of Adjustment may be taken by any interested party when it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by the Zoning Officer or Construction Official of the Borough based on or made in the enforcement of the zoning regulations, Article XI of this chapter. The following provisions shall apply to such appeals:
A.
Appeals must be taken within twenty (20) days of the decision of
the Zoning Officer or Construction Official.
B.
A notice of appeal shall be filed with the Zoning Officer or Construction
Official, specifying the grounds of the appeal. The officer from whom
the appeal is taken shall immediately transmit to the Board all the
papers constituting the record upon which the action appealed from
was taken.
C.
Fees required by this chapter shall be submitted with the notice
of appeal, as well as proof of payment of taxes and assessments.
D.
An 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 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 or her 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.
[Amended 12-17-01 by Ord. 2118]
E.
A public hearing shall be held in accordance with the provisions for hearings in this chapter. The appellant shall give public notice of the hearing in the manner specified for development applications in this chapter; provided that the parties entitled to notice shall be as specified in § 102-12B(1) of this chapter. If the appeal is made by an interested party other than the owner of the property which was the subject of the decision by the Zoning Officer or Construction Official, notice shall also be sent to said property owner. Affidavits of proof of service of notice shall be submitted at least two (2) business days prior to the hearing.
F.
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 shall have all the
powers of the officer from whom the appeal is taken.
G.
The Zoning Board of Adjustment shall render a decision not later
than one hundred twenty (120) days after the date the appeal is taken
from the Zoning Officer or Construction Official, or within such further
time as may be consented to by the applicant.
H.
The Zoning Board of Adjustment may refer an application pursuant
to this section 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 Board shall act.
[Amended 06-16-03 by Ord. 2143]
The Zoning Board of Adjustment shall hear and decide requests for interpretation of the zoning map or zoning regulations, Article XI of this chapter, or for decisions upon other special questions upon which the Board is specifically authorized to pass by this chapter, including but not limited to certification of nonconforming uses and/or structures pursuant to § 102-121B(7). The following provisions shall apply to such requests:
A.
An application form shall be completed and shall be accompanied by a specific written request which outlines that part of the zoning map, zoning regulations or official map for which an interpretation is sought, or outlines the special question that the Board is asked to consider. In the case of an application for certification of nonconforming uses and/or structures, the applicant shall also be required to submit the information set forth in § 102-78.
[Amended 06-16-03 by Ord. 2143]
B.
Sixteen (16) copies of the application form and all accompanying
documentation shall be submitted to the Secretary of the Board.
C.
Fees required by this chapter shall be submitted with the request,
as well as proof of payment of taxes and assessments.
D.
A public hearing shall be held in accordance with the provisions for hearings in this chapter. The appellant shall publish notice of the hearing on the request in the official newspaper of the Borough, if there be one, or in a newspaper of general circulation in the Borough. If the request for interpretation or special question concerns a specific property, the appellant shall also give public notice of the hearing in the manner specified for development applications in this chapter; provided that the parties entitled to notice shall be as specified in § 102-12B(1) of this chapter. If the request is made by a person other than the owner of the specific property which is the concern of the interpretation or special question, notice shall also be sent to said property owner. Affidavits of proof of service of notice shall be submitted at least two (2) business days prior to the hearing.
E.
The Zoning Board of Adjustment may refer an application pursuant
to this section to any appropriate person or agency, including the
Planning Board, for its report.
Appeals to the Zoning Board of Adjustment may be taken from
a refusal by the Construction Official to issue a permit for any building
or structure in the bed of any street or public drainage way, flood
control basin or public area reserved on the Official Map; provided
that if the proposed development requires approval by the Planning
Board of a subdivision, site plan or conditional use, the Planning
Board shall also hear any appeal pursuant to this section. The following
provisions shall apply to such appeals or applications:
A.
A developer may file an application for development with the appropriate
board under this section without prior application to the Construction
Official. In addition, the developer may elect to submit a separate
application requesting direction for the issuance of a permit and
a subsequent application for any required approval of a subdivision,
site plan or conditional use. The separate direction for the issuance
of a permit shall be conditioned upon grant of all required subsequent
approvals by the same Board that directed the issuance of a permit.
B.
Any appeal or application pursuant to this section shall be required
to submit sixteen (16) copies of a map showing the property in question
and the location of the proposed building and/or structure in relation
to the bed of the mapped street or public drainage way, flood control
basin or public area reserved on the Official Map. In addition, fees
required by this chapter shall be submitted with the notice of appeal,
as well as proof of payment of taxes and assessments.
C.
An appeal pursuant to this section shall stay all proceedings in the same manner as specified in § 102-33D.
D.
A public hearing shall be held in accordance with the provisions for hearings in this chapter. The appellant shall give public notice of the hearing in the manner specified for development applications in this chapter; provided that the parties entitled to notice shall be as specified in § 102-12B(1) of this chapter. Affidavits of proof of service of notice shall be submitted at least two (2) business days prior to the hearing.
E.
The Zoning Board of Adjustment may reverse or affirm, wholly or in
part, or may modify the refusal of the Construction Official and direct
the issuance of a permit subject to the following provisions:
(1)
There must be a showing by the appellant, and the Board must find,
that the subject property cannot yield a reasonable return to the
owner unless a building permit is granted.
(2)
Any decision of the Board to direct the issuance of a permit pursuant
to this section shall only be by an affirmative vote of a majority
of the full authorized membership of the Board.
(3)
Any decision of the Board to direct the issuance of a permit pursuant
to this section shall be in accordance with terms and conditions which
will as little as practicable increase the cost of opening such street,
or tend to cause a minimum change of the Official Map, and the Board
shall impose reasonable requirements as a condition of granting the
permit so as to promote the health, morals, safety and general welfare
of the public.
F.
The Zoning Board of Adjustment shall render a decision not later
than one hundred twenty (120) days after the date 1) an appeal is
taken from the Construction Official or 2) a development application
is certified to be complete pursuant to this chapter, or within such
further time as may be consented to by the applicant.
G.
The Zoning Board of Adjustment may refer an application pursuant
to this section 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 Board shall act.
Appeals to the Zoning Board of Adjustment may be taken from
a refusal by the Construction Official to issue a permit for any building
or structure on a lot which does not abut a street giving access to
such building or structure; provided that if the proposed development
requires approval by the Planning Board of a subdivision, site plan
or conditional use, the Planning Board shall also hear any appeal
pursuant to this section. The following provisions shall apply to
such appeals or applications:
A.
A developer may file an application for development with the appropriate
board under this section without prior application to the Construction
Official. In addition, the developer may elect to submit a separate
application requesting direction for the issuance of a permit and
a subsequent application for any required approval of a subdivision,
site plan or conditional use. The separate direction for the issuance
of a permit shall be conditioned upon grant of all required subsequent
approvals by the same Board that directed the issuance of a permit.
B.
Any appeal or application pursuant to this section shall be required
to submit sixteen (16) copies of a map showing the property in question
and the manner by which access will be provided to the building and/or
structure, including the location of the nearest street from which
access may be obtained. In addition, fees required by this chapter
shall be submitted with the notice of appeal, as well as proof of
payment of taxes and assessments.
C.
An appeal pursuant to this section shall stay all proceedings in the same manner as specified in § 102-33D.
D.
A public hearing shall be held in accordance with the provisions for hearings in this chapter. The appellant shall give public notice of the hearing in the manner specified for development applications in this chapter; provided that the parties entitled to notice shall be as specified in § 102-12B(1) of this chapter. Affidavits of proof of service of notice shall be submitted at least two (2) business days prior to the hearing.
E.
The Zoning Board of Adjustment may reverse or affirm, wholly or in
part, or may modify the refusal of the Construction Official and direct
the issuance of a permit subject to the following provisions:
(1)
There must be a showing by the appellant, and the Board must find,
that the refusal to issue a permit would entail practical difficulty
or hardship, or that the circumstances of the case do not require
the building or structure to be related to a street.
(2)
Any decision of the Board to direct the issuance of a permit pursuant
to this section shall be in accordance with terms and conditions which
will provide adequate access for firefighting equipment, ambulances
and other emergency vehicles necessary for the protection of health
and safety and that will protect any future street layout shown on
the Official Map or on the circulation plan element of the Borough
Master Plan.
F.
The Zoning Board of Adjustment shall render a decision not later
than one hundred twenty (120) days after the date 1) an appeal is
taken from the Construction Official or 2) a development application
is certified to be complete pursuant to this chapter, or within such
further time as may be consented to by the applicant.
G.
The Zoning Board of Adjustment may refer an application pursuant
to this section 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 Board shall act.
Appeals to the Zoning Board of Adjustment may be taken for relief from the zoning regulations, Article XI of this chapter. Notwithstanding the above, if the proposed development requires approval by the Planning Board of a subdivision, site plan or conditional use, the Planning Board shall also hear any such variance appeals, except for "D" variances. The following provisions shall apply to "C" variance appeals or applications:
A.
A developer may file an application for development with the appropriate
board under this section without prior application to the Zoning Officer
or Construction Official.
B.
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 same Board that approved the variance.
C.
Any appeal or application pursuant to this section shall be required to submit the information required by § 102-69.
D.
An appeal pursuant to this section shall stay all proceedings in the same manner as specified in § 102-33D.
E.
A public hearing shall be held in accordance with the provisions for hearings in this chapter. The appellant shall give public notice of the hearing in the manner specified for development applications in this chapter; provided that the parties entitled to notice shall be as specified in § 102-12B(1) of this chapter. Affidavits of proof of service of notice shall be submitted at least two (2) business days prior to the hearing.
F.
The Zoning Board of Adjustment may grant a "C" variance to allow
departure from the zoning regulations if there is a showing by the
appellant, and the Board finds that all of the following conditions
are met:
(1)
The strict application of the specific zoning regulation would result
in peculiar and exceptional practical difficulties to, or exceptional
and undue hardship upon the developer of the subject property due
to a) exceptional narrowness, shallowness or shape of the subject
property, b) exceptional topographic conditions or physical features
uniquely affecting the subject property, or c) an extraordinary and
exceptional situation uniquely affecting the subject property or the
structures lawfully existing thereon; or the purposes of the Municipal
Land Use Law would be advanced by the requested variance, and the
benefits of the variance would substantially outweigh any detriment;
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.
[Amended 12-17-01 by Ord. 2118]
(2)
The variance can be granted without substantial detriment to the
public good.
(3)
The grant of the variance will not substantially impair the intent
of the zone plan and zoning regulations.
G.
The Zoning Board of Adjustment shall render a decision not later
than one hundred twenty (120) days after the date 1) an appeal is
taken from the Zoning Officer or Construction Official or 2) a development
application is certified to be complete pursuant to this chapter,
or within such further time as may be consented to by the applicant.
H.
The Zoning Board of Adjustment may refer an application pursuant
to this section 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 Board shall act.
In particular cases, appeals to the Zoning Board of Adjustment
may be taken for "D" variance requests. Whenever the proposed development
involves a "D" variance, the Zoning Board of Adjustment shall also
hear any subdivision, site plan, conditional use application and any
other variance applications required for the development. The following
provisions shall apply to "D" variance appeals or applications:
A.
A developer may file an application for a "D" variance with the Zoning
Board of Adjustment without prior application to the Zoning Officer
or Construction Official.
B.
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.
C.
Any appeal or application pursuant to this section shall be required to submit the information required by § 102-69.
D.
An appeal pursuant to this section shall stay all proceedings in the same manner as specified in § 102-33D.
E.
A public hearing shall be held in accordance with the provisions for hearings in this chapter. The appellant shall give public notice of the hearing in the manner specified for development applications in this chapter; provided that the parties entitled to notice shall be as specified in § 102-12B(1) of this chapter. Affidavits of proof of service of notice shall be submitted at least two business days prior to the hearing.
F.
The Zoning Board of Adjustment may grant a "D" variance to allow
departure from the zoning regulations subject to the following provisions:
(1)
There must be a showing by the appellant, and the Board must find,
that all of the following conditions are met:
(a)
Special reasons exist justifying the grant of the variance.
(b)
The variance, including a variance or other relief involving
an inherently beneficial use, can be granted without substantial detriment
to the public good.
[Amended 12-17-01 by Ord. 2118]
(c)
The grant of the variance, including a variance or other relief
involving an inherently beneficial use, will not substantially impair
the intent of the zone plan and zoning regulations.
[Amended 12-17-01 by Ord. 2118]
(2)
Any decision of the Board to grant a "D" variance pursuant this section
shall only be by an affirmative vote of at least five (5) members
of the Board.
G.
The Zoning Board of Adjustment shall render a decision not later
than one hundred twenty (120) days after the date 1) an appeal is
taken from the Zoning Officer or Construction Official or 2) a development
application is certified to be complete pursuant to this chapter,
or within such further time as may be consented to by the applicant.
H.
The Zoning Board of Adjustment may refer an application pursuant
to this section 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 Board shall act.
Any interested party may appeal to the Borough Council any final
decision of the Zoning Board of Adjustment approving an application
for development involving a "D" variance. The following provisions
shall apply to such appeals:
A.
Appeals to the Borough Council shall be made within ten (10) days
of the date of publication of the final decision of the Zoning Board
of Adjustment.
B.
The appeal to the Borough Council shall be made by serving the Borough
Clerk in person or by certified mail with a notice of appeal specifying
the grounds thereof, the name and address of the appellant and the
name and address of his or her attorney, if represented.
[Amended 12-17-01 by Ord. 2118]
C.
An appeal pursuant to this section shall stay all proceedings in the same manner as specified in § 102-33D.
D.
The appellant shall, within five (5) days of service of the notice of the appeal, arrange for a transcript pursuant to § 102-18 for use by the Borough Council and pay a deposit as specified in Article V of this chapter, or within thirty-five (35) days of service of the notice of appeal, submit a transcript as otherwise arranged to the Borough Clerk; otherwise, the appeal may be dismissed for failure to prosecute.
E.
Notice of the meeting to review the record below shall be given by the Borough Council by personal service or certified mail to the appellant, or to his or her attorney if represented, to those entitled to notice of a decision pursuant to § 102-20A, and to the Zoning Board of Adjustment at least ten (10) days prior to the date of the meeting.
[Amended 12-17-01 by Ord. 2118]
F.
The appeal shall be decided by the Borough Council only upon the record established before the Zoning Board of Adjustment. The parties may submit oral and written argument on the record at such meeting, and the Borough Council shall provide for verbatim recording and transcripts of such meeting pursuant to § 102-18.
G.
The Borough Council may reverse, remand, or affirm with or without
the imposition of conditions the final decision of the Zoning Board
of Adjustment granting a "D" variance.
H.
The affirmative vote of a majority of the full authorized membership
of the Borough Council shall be necessary to reverse or remand to
the Zoning Board of Adjustment or to impose conditions on or alter
conditions to any final action of the Zoning Board of Adjustment;
otherwise the final action of the Zoning Board of Adjustment shall
be deemed to be affirmed. A tie vote of the Borough Council shall
constitute affirmance of the decision of the Zoning Board of Adjustment.
I.
The Borough Council shall conclude a review of the record below not later than ninety-five (95) days from the date of publication of notice of the decision below pursuant to § 102-20C, unless the applicant consents in writing to an extension of such period.
J.
Failure of the Borough Council to hold a hearing and conclude a review of the record below and to render a decision within the period specified in Subsection I above shall constitute a decision affirming the action of the Zoning Board of Adjustment.
K.
The Borough Council shall mail a copy of the decision to the appellant, or if represented then to his or her attorney, without separate charge, and for a fee as provided by Article V of this chapter, to any interested party who has requested it, not later than ten (10) days after the date of the decision.
[Amended 12-17-01 by Ord. 2118]
L.
A brief notice of the decision shall be published in the official newspaper of the Borough, if there be one, or in a newspaper of general circulation in the Borough. Such publication shall be arranged by the Borough Clerk; provided that nothing herein shall be construed as preventing the applicant from arranging such publication if he or she so desires. The Borough Council shall require a fee for the publication as specified in Article V of this chapter.
[Amended 12-17-01 by Ord. 2118]
M.
Nothing in this section shall be construed to restrict the right
of any party to obtain a review by any court of competent jurisdiction
according to law. The period of time in which an appeal to a court
of competent jurisdiction may be made shall run from the first publication
of the decision of the Borough Council, whether arranged by the Council
or the applicant.
Variances granted after the effective date of this chapter by
the Planning Board or the Zoning Board of Adjustment shall expire
unless the development associated with the variance is promptly completed;
provided, however, that no variance which was a prerequisite for subdivision
approval shall expire if the plat or deed for the subdivision has
been filed with the County Recording Officer as required by law. All
other variances shall expire in accordance with the following provisions:
A.
Variance approvals not subject to site plan, subdivision or conditional
use approval. In the case of a variance approval from the Zoning Board
of Adjustment which does not also require subdivision, site plan or
conditional use approvals from the Board, the required building permits
must be obtained within twelve (12) months of the date of the resolution
of approval or within twelve (12) months of the date that all conditions
precedent of approval, if any, have been satisfied, whichever occurs
later, or the variance will expire.
B.
Variance approvals subject to or part of site plan or conditional use approval. In the case of a variance approval from the Planning Board or the Zoning Board of Adjustment which also requires site plan or conditional use approvals from the Board, the required building permits must be obtained prior to the date of expiration of the period of statutory protection against changes in the zoning regulations, which periods are provided in Article VIII of this chapter, or the variance will expire.
C.
Bifurcated variance applications. In the case of a bifurcated variance
approval from the Planning Board or the Zoning Board of Adjustment
which requires subsequent subdivision, site plan or conditional use
approvals from the Board, all such subsequent applications shall be
filed within twelve (12) months of the date of the resolution approving
the original variance, or within twelve (12) months of the date that
all conditions precedent of the approval for the original variance,
if any, have been satisfied, whichever occurs later, or the variance
will expire.
D.
Extensions. The Planning Board or the Zoning Board of Adjustment, as applicable, may, upon good cause shown in writing, extend the expiration dates for variances specified in Subsections A, B and C above, provided that the extension is applied for prior to or within ten (10) days of the date upon which the variance would otherwise expire.
E.
Appeal of expiration. Should the developer fail to meet the deadlines
for the expiration of variances specified in this section, said relief
shall be deemed to be automatically rescinded by the Board unless
the developer, within ten (10) days of the required deadline, provides
in writing sufficient cause to show why such relief should not be
rescinded. Should the developer submit a written showing of cause,
the Board shall hold a public hearing on the request by the developer,
with public notice to be served the same as in the original variance
application.
