[Source history includes 1988 Code § 105-12—105-23; Ord. No. 600-11 §§ 1-3; Ord. No. 597-11 § 2; N.J.S.A. 40:55d-70. Amended in its entirety by Ord. No. 13-2017]
[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]
a. 
The Planning Board shall exercise all those powers set forth in N.J.S.A. 40:55D-70 et seq. thereto and within the provisions of this chapter.
b. 
It is further the intent of this chapter to confer upon the Planning Board as full and complete powers as may lawfully be conferred upon such Board, including, but 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.
c. 
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 and with the general rule hereby laid down that equity shall be done in cases where the strict construction of the provisions of this 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 in said Municipal Land Use Law or subsequent statutes in such case 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.
[Ord. No. 13-2017]
a. 
Appeals to the Planning Board may be taken by any interested party. Each appeal shall be taken within the twenty (20) days prescribed by the statute by filing a notice of appeal with the officer from whom the appeal was taken, together with three (3) copies of said notice with the Secretary of the Planning Board. Said notice of appeal shall specify the grounds for said 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.
b. 
An appeal stays all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the officer from whom the appeal is taken certifies to the Planning Board, 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 cases, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Planning Board 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. 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.