[Ord. No. 13-2017]
Pursuant to N.J.S.A. 40:55D-25 (c) 1 the Planning Board shall
exercise to the same extent and subject to the same restrictions,
all the powers of the former Cape May Point Board of Adjustment. However,
the Class I and Class III members of the Planning Board shall not
participate in the consideration of applications for development which
involve relief under subsection (d) of N.J.S.A. 40:55D-70.
[Ord. No. 13-2017]
In exercising the above-mentioned power, the Planning Board
may, in conformity with the provisions of the Municipal Land Use Law
(P.L. 1975, c. 291) or amendments thereto or subsequent statutes applying,
reverse or affirm, wholly or partly, or 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. 13-2017]
Any variance from the terms of this chapter hereafter granted
by the Planning Board 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 (1) year from the date of publication of the notice of
the judgment or determination of the Planning Board; 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
Planning Board to the Governing Body or to a court of competent jurisdiction,
until the termination in any manner of such appeal or proceeding.
[N.J.S.A. 40:55d-70; Ord. No. 13-2017]
The Planning Board shall have the power to:
a. 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 based on or made in the enforcement of
the zoning ordinance;
b. Hear and decide requests for interpretation of the zoning map or
ordinance or for decisions upon other special questions upon which
such board is authorized to pass by any zoning or official map ordinance,
in accordance with this act; N.J.S.A. 40:55D-1 et seq.;
c.
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
pursuant to 40:55D-62 et seq. 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 or the purposes of the "Educational Facilities Construction and Financing Act," P.L.2000, c. 72 (C.18A:7G-1 et al.), 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 8 of this act; 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
d 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 subsection
a of N.J.S.A. 40:55D-60; and
d. In particular cases for special reasons, grant a variance to allow
departure from regulations pursuant to Article 8 of this act 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 section
54 of P.L.1975, c. 291 (C.40:55D-67) pertaining solely to a conditional
use, (4) an increase in the permitted floor area ratio as defined
in section 3.1 of P.L.1975, c. 291 (C. 40:55D-4), (5) an increase
in the permitted density as defined in section 3.1 of P.L.1975, c.
291 (C.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 are resulting
from a minor subdivision or (6) a height of a principal structure
which exceeds by ten (10) feet or ten (10%) percent 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 (5) members, in the case of a municipal board, or two-thirds
(2/3) of the full authorized membership, in the case of a regional
board, pursuant to N.J.S.A. 40:55D-77 et seq.
If an application development requests one or more variances but not a variance for a purpose enumerated in subsection
d of this section, the decision on the requested variance or variances shall be rendered under subsection
c of this section.
No variance or other relief may be granted under the terms of
this section, including a variance or other relief involving an inherently
beneficial use, without a showing that such variance or other relief
can be granted without substantial detriment to the public good and
will not substantially impair the intent and the purpose of the zone
plan and zoning ordinance. In respect to any airport safety zones
delineated under the "Air Safety and Zoning Act of 1983," P.L.1983,
c. 260 (C.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 standards promulgated
pursuant to that 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 reference shall not extend the period of time within which the
Planning Board shall act.
[Ord. No. 13-2017]
The Planning Board shall, in addition to the powers specified in Section
105-17 of this Article, have power given by law to:
a. Direct 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.