[Ord. No. 581 § 3-1; Ord. No. 05-1374 § 1]
A Zoning Board of Adjustment is hereby established in the Borough
of Bernardsville pursuant to the Municipal Land Use Law, N.J.S.A.
40:55D-1 et seq., consisting of seven regular members and four alternate
members, all of whom are citizens of the Borough, appointed by the
Governing Body. No member of the Zoning Board of Adjustment may hold
any elective office or position under the municipality, except that
one such regular member may be a member of the Planning Board.
[Ord. No. 581 § 3-2; Ord. No. 05-1374 § 1]
The terms of the regular members shall be four years from January
1 of the year of their appointment. The Governing Body may appoint
four alternate members of the Zoning Board of Adjustment. Alternate
members shall be designated by the Governing Body "Alternate Member
No. 1," "Alternate Member No. 2," "Alternate Member No. 3" and "Alternate
Member No. 4," as appropriate. The initial term of one of the additional
alternates appointed pursuant to this section shall be one year and
the term of the second additional alternate appointed under this section
shall be two years. Thereafter, the term of each alternate member
shall be two years and the terms of not more than two alternate members
shall expire in any one year.
[Ord. No. 581 § 3-3]
If a vacancy shall occur otherwise than by expiration of term,
it shall be filled by appointment as above provided for the unexpired
term.
[Ord. No. 581 § 3-4]
The Board of Adjustment shall elect a Chairman and Vice Chairman
from its members and shall also select an Administrative Officer who
may be either a member of the Zoning Board of Adjustment or a municipal
employee designated by it.
[Ord. No. 581 § 3-5]
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.
[Ord. No. 581 § 3-6]
The Zoning Board of Adjustment may also employ or contract for
and fix the compensation of such experts and of 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.
The powers of the Zoning Board of Adjustment shall be in accordance
with N.J.S.A. 4:55D-69 et seq. and amendments and supplements thereto,
and with the provisions of this chapter.
It is further the intent of this chapter to confer upon the
Zoning Board of Adjustment as full and complete powers as may lawfully
be conferred upon such Board, including, not by way of limitation,
the authority, in connection with any case, action or proceeding before
the Board, to interpret and construe the provisions of this chapter,
or any term, clause, sentence or word hereof, and the Zoning Map,
in accordance with the general rules of construction, applicable to
legislative enactments.
[Ord. No. 581 § 3-7]
The Board may, in appropriate cases and subject to appropriate
conditions and safeguards, grant variances from the terms of this
chapter in accordance with the general or specific rules contained
herein.
The Board of Adjustment shall have such powers as granted by
law to:
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 Officer or Agency based on or made in the
enforcement of Article 12, Zoning.
Hear and decide request for interpretation of the Map or Zoning
Ordinance, or for decisions upon other special questions upon which
such Board is authorized by Article 12, Zoning, to pass.
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 structure
lawfully existing thereon, the strict application of any regulation
pursuant to Article 12 of this Code (1) 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 act would be advanced by a deviation
from the Zoning Ordinance requirements and the benefits of the deviation
would substantially outweigh any detriment, grant a variance to allow
departure from regulations pursuant to Article 12 of this Code; 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 N.J.S.A. 40:55D-70d 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-60.
In particular cases for special reasons, grant a variance to
allow departure from regulations pursuant to Article 12 of this Code
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) deviation from a specification or standard pursuant to N.J.S.A.
40:55D-67 pertaining solely to a conditional use, (4) an increase
in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4,
(5) 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 either an isolated
undersized lot or lots resulting from a minor subdivision or (6) a
height of a principal structure which exceeds by 10 feet or 10% the
maximum height permitted in the district for a principal structure.
A variance under this subsection shall be granted only by affirmative
vote of at least five members. If an application development requests
one or more variances but not a variance for a purpose enumerated
in N.J.S.A. 40:55D-70d, the decision on the requested variance or
variances shall be rendered under N.J.S.A. 40:55D-70c.
[Ord. No. 581 § 3-8; Ord. No. 98-1149 § 1 Art. 3]
No variance or other relief may be granted under the provisions
of this section unless such variance or other relief can be granted
without substantial detriment to the public good and will not substantially
impair the intent and purpose of the Zoning Map and Article 12, Zoning.
Any application under any subsection of this section may be referred
to any appropriate person or agency including the Planning Board,
for its report provided that such reference shall not extend the period
of time within which the Zoning Board of Adjustment shall act.
The Zoning Board of Adjustment shall in addition to the powers specified in § 3-8 of this Article have power given by law to:
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-76a(1)
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.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-76a(2)
for a building or structure not related to a street.
[Ord. No. 581 § 3-9]
Grant to the same extent and subject to the same restrictions as the Planning Board, subdivision or site plan approval pursuant to Articles 9 or 10 of this chapter, or conditional use approval pursuant to Article 12 whenever the proposed development requires approval by the Board of Adjustment of a variance pursuant to Subsection 3-8.4 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 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 Zoning Map and Article 12, Zoning. The number of votes of Board of Adjustment members required to grant any such subsequent approval shall be as otherwise provided in this chapter for the approval in question and the special vote pursuant to Subsection 3-8.4 of this chapter shall not be required.
Appeals to the Board of Adjustment may be taken by any person
aggrieved, or by any officer, department, board, or bureau of the
Municipality affected by any decision of the Administrative Officer.
Each appeal shall be taken within the 20 days prescribed by the Statute
by filing a notice of appeal with the officer from whom the appeal
was taken, together with two copies of the notice with the Administrative
Officer of the Board of Adjustment. The Notice of Appeal shall specify
the grounds for the appeal. The officer from whom the appeal is taken
shall forthwith transmit to the Board all the papers constituting
the record upon which the action appealed from was taken.
[Ord. No. 2001-1234 § 1; Ord. No. 2005-1395 § 1; Ord. No. 2019-1800; amended 9-27-2021 by Ord. No. 2021-1895]
a.
Applications addressed to the original jurisdiction of the Zoning
Board of Adjustment shall be filed with the Board' s Administrative
Officer. The applicant shall file, at least 10 days before the date
set for hearing, 21 copies of a complete application on the form(s)
adopted by the Board, 21 copies of the applicable, completed review
checklist, as adopted in paragraph d. of this subsection, together
with 21 copies of all reports, drawings, etc. that are required for
the application to be deemed complete. Initially, 10 sets of applications
(as per above) may be filed with the remaining 11 sets submitted not
less than 10 days prior to the hearing date scheduled for the application.
At the time of filing the appeal of application, but in no event less
than 10 days prior to the date set for hearing, the applicant shall
also file all plat plans, maps, or other papers required by virtue
of any provision of this Chapter or any rule of the Board of Adjustment.
The applicant shall obtain all necessary forms from the Board Administrative
Officer. The Administrative Officer shall inform the applicant of
the steps to be taken to initiate proceedings and of the regular meeting
dates of the Board.
b.
In addition to submittal of hard copies of documents, copies of all
applications, surveys, plans, reports and studies, such as environmental
impact, traffic, stormwater, sewer and water reports, and any other
documents associated with the application, shall be submitted digitally
in portable document format (pdf) at 400 x 400 dpi. Submittal of such
digital copies shall be required to constitute an application for
development, and all revised files shall be resubmitted as the originals
are changed or amended. Every electronic submission must be accompanied
by a cover letter listing all attached documents and any revisions,
where applicable.
c.
Any
maps and documents subsequently required by the Board of Adjustment
shall also be filed in hard copy and digital (pdf) form and shall
be on file in the office of the Administrative Officer and available
for public inspection at least 10 days before the date of the hearing
or consideration pursuant to the provisions of N.J.S.A. 40:55D-10b.
d.
Board
of Adjustment Review Checklists which are incorporated herein by reference
and which shall be included in Appendices A and B to this chapter
are hereby adopted and shall be completed by all applicants in accordance
with paragraph a. above.
Editor's Note: Appendices A and B may be found as Attachments
1 and 2 with this Chapter.
[Ord. No. 581 § 3-10; Ord. No. 2001-1234 § 1]
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 Board of Adjustment
after the notice of appeal shall have been filed with him that by
reason of facts stated in the certificate a stay would, in his opinion,
cause imminent peril to life or property. In such case, proceedings
shall not be stayed otherwise than by a Restraining Order which may
be granted by the Board of Adjustment or by the Superior Court of
New Jersey on application or notice to the officer from whom the appeal
is taken and on due cause shown.
[Ord. No. 581 § 3-11]
In exercising the above mentioned power, the Board of Adjustment
may, in conformity with the provisions of N.J.S.A. 40:55D-1 et seq.
or amendments thereto or subsequent statutes applying, reverse or
affirm wholly or partly or may modify the order, requirement, decision,
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.
[Ord. No. 581 § 3-12]
Any variance from the terms of any ordinance hereafter granted
by the Board of Adjustment pursuant to N.J.S.A. 40:55D-70d 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 the variance, or unless such
permitted use has actually been commenced, within 12 months from the
date of entry of the judgment or determination of the 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 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.
[Ord. No. 581 § 3-13]
The Board of Adjustment shall render its decision not later
than 120 days after the date: (1) an appeal is taken from the decision
of an Administrative Officer; or (2) the submission of a complete
application for development to the Board as defined in Subsection
1-3.2 of this chapter, pursuant to the provisions of N.J.S.A. 40:55D-70.
a.
In the event that the developer elects to submit separate consecutive
applications as provided in Subsection 3-9.3, the 120-day 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.
b.
Failure of the Board of Adjustment to act within the prescribed period
or within such further time as may be consented to by the applicant,
shall constitute a decision favorable to the applicant.
[Ord. No. 581 § 3-14]
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. 67A-1 et seq.) shall apply.
[Ord. No. 581 § 3-15]
An appeal to the Zoning Board of Adjustment may be taken by any interested party affected by any decision of an officer of the municipality based on or made in the enforcement of the Zoning Ordinance (See Article 12) or Official Map. Such appeal shall be taken within 65 days by filing a Notice of Appeal in the manner set forth in Subsection 3-10.1 and in accordance with the provisions of N.J.S.A 40:55D-69 et seq.
An appeal from the Zoning Board of Adjustment approving an application
for a development involving the following may be taken to the Governing
Body within 10 days of the date of publication of each final decision,
and such appeal shall be made pursuant to N.J.S.A. 40:55D-17 and Article
5 of this chapter.
[Ord. No. 581 § 3-16]
An appeal from any other final decision may be taken only to
the Superior Court pursuant to law.
The Zoning Board of Adjustment may refer any application to
any appropriate person or agency for its report pursuant to N.J.S.A.
40:55D-70; provided that such reference shall not extend the period
of time within which the Zoning Board of Adjustment shall act.
[Ord. No. 581 § 3-17]
Referrals to the Planning Board shall be pursuant to N.J.S.A.
40:55D-26 and Article 4 of this chapter.
[Ord. No. 2005-1395 § 2]
Whenever the Environmental Commission has prepared and submitted
to the Planning Board and Board of Adjustment an index of the natural
resources of the municipality, the Board of Adjustment shall make
available to the Environmental Commission an information copy of every
application for development to the Board of Adjustment. Failure of
the Planning Board to make such informational copy available to the
Environmental Commission shall not invalidate any hearing or proceeding.
[Ord. No. 2006-1442 § 1]
Viewing the property that is the subject of the application
by Board members and consultants shall be permitted upon reasonable
notice to the applicant. The presence during the site visit or visits
of the applicant or his or her counsel is unnecessary. If there are
site visits, or if one or more members of the Board are familiar with
the subject property, such knowledge may be used in making a decision
if such Board member establishes such facts on the record at the time
of the hearing. The applicant, any objector, or any interested party
shall have an opportunity to refute such facts. Contemporaneously
with the filing of his or her application, the applicant shall "mark
out" the corners of any subdivision, building or addition to be placed
on the property that is the subject of the application.
