[1]
Editor's Note: Former § 70-35, Establishment, composition
and organization of Board of Adjustment, was repealed 12-20-95 by
Ord. No. 26-95.
A.
The Board of Adjustment shall have the power to:
(1)
Error or refusal: 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 this chapter.
(2)
Exceptions or interpretations: hear and decide, in accordance with
the provisions of this chapter, requests for interpretation of the
Zoning Map or Zoning Ordinance or for decisions upon other special
questions upon which the Board is authorized to pass by any land development
ordinance or Official Map.
(3)
Variance of area or yard requirements: where, by reason of exceptional
narrowness, shallowness or shape of a specific piece of property,
or by reason of exceptional topographic conditions, or by reason of
other extraordinary and exceptional situation or condition of such
piece of property, the strict application of any regulation of this
chapter 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 any difficulties or hardships; provided, however, that no
variance shall be granted under this subsection to allow a structure
or use in a district restricted against such structure or use, 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 shall review a request
for a variance pursuant to this chapter.
(4)
Variance of use regulations: grant a variance to allow a structure
or use in a district restricted against such structure or use in particular
case and for special reasons, but only by affirmative vote of at least
2/3 of the full authorized membership of the Board.
B.
General provision. No variance or other relief may be granted under
the terms 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 zone plan and
Zoning Ordinance. Any application to the Board of Adjustment under
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.
C.
Other powers. The Board of Adjustment shall have such other powers
as prescribed by law, including but not limited to the following:
(1)
Direct issuance of a building permit 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 of the municipality whenever one or more parcels of land within
said bed cannot yield a reasonable return to the owner unless a building
permit is granted. The Board shall impose reasonable requirements
as a condition of granting the building permit so as to promote the
health, morals, safety and general welfare of the public.
(2)
Direct issuance of a building permit for the construction of a building
or structure on a lot not abutting a street which is shown on a duly
adopted Official Map of the municipality or which is an existing state,
county or municipal street or highway; or a street shown upon a plat
approved by the municipal Planning Board; or a street on a plat duly
filed in the office of the county recording officer. The Board may
grant such relief only where the enforcement of the statute requirement
that a building 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 firefighting equipment, ambulances and other emergency vehicles
necessary for the protection of the health and safety and will protect
any future street layout shown on the Official Map or on the municipal
Master Plan.
(3)
The Board of Adjustment shall have the power to grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision or site plan approval or conditional use approval whenever the Board of Adjustment is reviewing an application for approval of a variance pursuant to § 70-36A(4) of this chapter; provided, however, that the exercise of subdivision and/or site plan review by the Zoning Board of Adjustment shall be restricted to that lot or lots upon which the proposed variant use is to be situated.
A.
Appeals to the Board of Adjustment may be taken by an interested
party affected by any decision of an officer of the municipality based
on or made in the enforcement of this chapter or the Official Map.
Such appeal shall be taken within 65 days by filing a notice of appeal
with the officer from whom the appeal is taken, specifying the grounds
of such appeal. Three copies of the notice shall simultaneously be
filed with the Secretary of the Board of Adjustment. 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.
B.
A developer may file an application for development with the Board
of Adjustment for action under any of its powers without prior application
to an officer of the municipality. Six copies of such an application
shall be filed with the Secretary of the Board of Adjustment. All
plot plans, maps and/or other information required for review by the
Zoning Board of Adjustment or this chapter shall be submitted to the
Secretary of the Board of Adjustment at least 10 days prior to the
date set by the Board of Adjustment for the public hearing on the
application. The applicant shall obtain all necessary forms from the
Secretary of the Zoning Board of Adjustment.
C.
The Board of Adjustment shall render a decision not later than 120
days after the date that an appeal is taken from the decision of an
officer of the municipality or a complete application for development
is submitted to the Board by a developer. Failure of the Board to
render a decision within such one-hundred-twenty-day period or within
such further time as may be consented to by the applicant shall constitute
a decision favorable to the applicant.
D.
Any appeal to the 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 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
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.
E.
In acting on any appeal, the 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 have
all the powers of the officer from whom the appeal is taken.
A.
A Planning Board is hereby established consisting of nine members
of the following four classes:
(1)
Class I: the Mayor.
(2)
Class II: one of the officials of the municipality, other than a
member of the Governing Body, to be appointed by the Mayor.
(3)
Class III: a member of the Governing Body appointed by it.
(4)
Class IV: six other citizens of the municipality to be appointed
by the Mayor. The members of Class IV shall hold no other municipal
office, except that one member may be a member of the Zoning Board
of Adjustment. A member of the Environmental Commission who is also
a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall
be a Class IV Planning Board member.
[Amended 12-20-95 by Ord. No. 26-95]
B.
The term of the member composing Class I shall correspond with his
official tenure. The terms of the members composing Class II and Class
III shall be for one year or terminate at the completion of their
respective terms of office, whichever occurs first, except that the
term for a Class II member who is a member of the Environmental Commission
shall be for three years or terminate at the completion of his term
of office as a member of the Environmental Commission, whichever comes
first.
C.
The terms of all Class IV members first appointed pursuant to this
chapter shall be so determined that to the greatest practicable extent
the expiration of such terms shall be evenly distributed over the
first four years after their appointment and as determined by resolution
of the Governing Body; provided, however, that no term of any member
shall exceed four years, and further provided that nothing herein
shall affect the terms of any present members of the Planning Board,
all of whom shall continue in office until the completion of the terms
of four years, except as otherwise herein provided. All terms shall
run from January 1 of the year in which the appointment was made.
[Amended 4-18-01 by Ord. No. 2-2001].
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Four alternate positions to the Planning Board are established,
consisting of the following:
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Alternate Number 1
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Alternate Number 2
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Alternate Number 3
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Alternate Number 4
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(1)
Alternate members shall be appointed for Class IV members of the
Planning Board.
(2)
The terms of the alternate members shall be for two years, except
that the terms of the alternate members shall be such that the term
of not more than two alternate members shall expire in any one year;
and provided further that in no instance shall the terms of the alternate
members first appointed exceed two years.
(3)
Vacancies occurring, otherwise, by the expiration of a term shall
be filled by the appointing authority for the unexpired term only.
(4)
Alternate members may participate in discussions of the proceedings
but may not vote except in the absence or disqualification of a regular
member of any class.
[Added 7-20-94 by Ord. No. 11-94]
(5)
No alternate member shall be permitted to act on any matter in which
he has, either directly or indirectly, any personal or financial interest.
(6)
An alternate member may, after public hearing if he requests one,
be removed by the Borough Council for cause.
D.
If a vacancy of any class shall occur otherwise than by expiration
of term, it shall be filled by appointment as above provided for the
unexpired term.
E.
The Planning Board shall elect a Chairman and a Vice Chairman from
the members of Class IV and select a Secretary, who may be either
a member of the Planning Board or a municipal employee designated
by it.
F.
The Planning Board may also employ or contract for and fix the compensation
of such experts and 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.
G.
The Planning Board shall adopt such rules and regulations as may
be necessary to carry into effect the provisions and purposes of this
chapter.
H.
When any hearing before the Planning Board shall carry over two or
more meetings, a member of the Board who was absent for one or more
of the meetings shall be eligible to vote on the matter upon which
the hearing was conducted, notwithstanding his absence from one or
more of the meetings; provided, however, that such Board member has
available to him a transcript or recording of the meeting from which
he was absent and certifies in writing to the Board that he has read
such transcript or listened to such recording.
The Planning Board shall have the powers listed below in addition
to other powers established by law:
A.
Make, adopt and, from time to time, amend a Master Plan for the physical
development of the borough, including any areas outside its boundaries
which, in the Board's judgment, bear essential relation to the planning
of the borough.
B.
Administer the subdivision and site plan review provisions of this
chapter.
C.
Participate in the preparation and review of programs or plans required
by state or federal law or regulation.
D.
Assemble data on a continuing basis as part of a continuous planning
process.
E.
As directed by the governing body, prepare a program of municipal
capital improvements projects projected over a term of six years and
amendments thereto and recommend same to the governing body.
F.
Consider and make report to the governing body within 35 days after
referral as to any proposed development regulation submitted to it
and also pass upon other matters specifically referred to the Planning
Board by the governing body.
G.
The Planning Board shall have such other powers prescribed by law
and shall have and exercise all of the powers, duties and procedures
prescribed by the Statutes of the State of New Jersey for Planning
Boards and shall exercise all of the powers, duties and procedures
established by Ordinance pursuant to the provisions of the "Municipal
Land Use Act."
Additionally, the Planning Board shall exercise, to the same extent and subject to the same limitations or restrictions, all powers provided by statute and by ordinance to the Zoning Board of Adjustment including, without limitation, the exercise of all powers and jurisdiction heretofore established in the Zoning Board of Adjustment by Section 70-36 of the Woodbury Heights Code and as provided by the "Municipal Land Use Law" (NJSA 40:55 D-1, et seq.; Chapter 291 of the Public Laws of 1975, as amended and supplemented) except that Class I and Class III members of the Planning Board shall not participate in or act upon applications for development seeking relief pursuant to subsection (b) of Section 57, at Chapter 291 of the Public Laws of 1975, as amended and supplemented (NJSA 40:55 D-70).
[Amended 12-20-95 by Ord. No. 26-95]
A.
Conflicts of interest. No member of the Planning Board or Zoning
Board of Adjustment shall act on any matter in which he has, either
directly or indirectly, any personal or financial interest. Whenever
any such member shall disqualify himself from acting on a particular
matter, he shall not continue to sit with the Board on the hearing
of such matter nor participate in any discussion or decision relating
thereto.
B.
Meetings.
(1)
Meetings of both the Planning Board and Zoning Board of Adjustment
shall be scheduled no less often than once a month, and any meeting
so scheduled shall be held as scheduled unless canceled for lack of
applications for development to process.
(2)
Special meetings may be provided for at the call of the Chairman
or on the request of any two Board members, which meetings shall be
held on notice to the Board's members and the public in accordance
with all applicable legal requirements.
(3)
No action shall be taken at any meeting without a quorum being present,
said quorum to be the majority of the full authorized membership of
the Board.
(4)
All actions shall be taken by majority vote of a quorum except as
otherwise required by a provision of N.J.S.A. 40:55D-1 et seq.
(5)
All meetings shall be open to the public. Notice of all such meetings
shall be given in accordance with the requirements of the Open Public
Meeting Law, P.L. 1975, c. 231.
C.
Records.
(1)
Minutes of every regular or special meeting shall be kept and shall
include the names of the persons appearing and addressing the Planning
Board or the Zoning Board of Adjustment and of the persons appearing
by attorney, the action taken by the Planning or Zoning Board, the
findings, if any, made by it and reasons therefor. The minutes shall
thereafter be made available for public inspection during the normal
business hours at the office of the Administrative Officer. Any interested
party shall have the right to compel production of the minutes for
use as evidence in any legal proceedings concerning the subject matter
of such minutes.
(2)
A verbatim recording shall be made of every hearing. The recording
of the proceedings shall be made by either stenographer or mechanical
or electronic means. The municipality shall furnish a transcript or
duplicate recording in lieu thereof on request to any interested party
at his expense.
D.
Public hearings.
(1)
The Planning Board or Zoning Board of Adjustment, as the case may
be, shall hold a hearing on each application for development. Each
Board shall make the rules governing such hearings.
(2)
Any maps and documents for which approval is sought at a hearing
shall be on file and available for public inspection at least 10 days
before the date of the hearing during normal business hours in the
office of the Administrative Officer. The applicant may produce other
documents, records or testimony at the hearing to substantiate or
clarify or supplement the previously filed maps and documents.
(3)
The officer presiding at the hearing or such person as he may designate
shall have power to administer oaths and issue subpoenas to compel
the attendance of witnesses and the production of relevant evidence,
including witnesses and documents presented by the parties, and the
provisions of the County and Municipal Investigations Law, P.L. 1953,
c. 38 (N.J.S.A. 2A:67A-1 et seq.), shall apply.
(4)
The testimony of all witnesses relating to an application for development
shall be taken under oath or affirmation by the presiding officer,
and the right of cross-examination shall be permitted to all interested
parties through their attorneys, if represented, or directly, if not
represented, subject to the discretion of the presiding officer and
to reasonable limitations as to time and number of witnesses.
(5)
Technical rules of evidence shall not be applicable to the hearing,
but the Board may exclude irrelevant, immaterial or unduly repetitious
evidence.
E.
Public notice of hearing.
(1)
Public notice of a hearing shall be given for the following applications
for development:
(2)
The Secretary of the Planning Board or Zoning Board of Adjustment,
as the case may be, shall notify the applicant at least two weeks
prior to the public hearing at which the application will be discussed.
Notice of a hearing requiring public notice shall be given by the
applicant at least 10 days prior to the date of the hearing in the
following manner:
(a)
By publication in the official newspaper of the municipality,
if there is one, or in a newspaper of general circulation in the municipality.
(b)
To all owners of real property, as shown on the current tax
duplicate, located within 200 feet in all directions of the property
which is the subject of the hearing, which notice shall be given by
serving a copy thereof on the property owner, as shown on the current
tax duplicate, or his agent in charge of the property or by mailing
a copy thereof by certified mail to the property owner at his address
as shown on said current tax duplicate. It is not required that a
return receipt be obtained. Notice is deemed complete upon mailing
(N.J.S.A. 40:55D-14).
(c)
Notice to a partnership owner may be made by service upon any
partner. Notice to a corporate owner may be made by service upon its
president. a vice president, secretary or other person authorized
by appointment or by law to accept service on behalf of the corporation.
(d)
To the Clerk of any adjoining municipality or municipalities
when the property involved is located within two (200) feet of said
adjoining municipality or municipalities, which notice shall be given
by personal service or certified mail.
(e)
To the County Planning Board when the application for development
involves property adjacent to an existing county road or proposed
road shown on the County Official Map or the County Master Plan or
adjoins other county land.
(f)
To the Commissioner of Transportation of the State of New Jersey
when the property abuts a state highway.
(g)
To the Director of the Division of State and Regional Planning
in the Department of Community Affairs when the hearing involves an
application for development of property which exceeds 150 acres or
500 dwelling units, in which case the notice shall include a copy
of any maps or documents required to be on file with the administrative
officer.
(3)
Upon the written request of an applicant, the Borough Tax Assessor shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners within the borough to whom the applicant is required to give notice. The applicant shall be charged $10 for said list and shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner not on the list shall not invalidate any hearing or proceeding. Additionally, the applicant shall be responsible for giving proper notice to all property owners pursuant to Subsection E(2)(b) above who do not reside within the borough.
(4)
The applicant shall file an affidavit or proof of service with the
Planning Board or Zoning Board of Adjustment, as the case may be.
(5)
The notice shall state the date, time and place of the hearing and
the nature of the matters to be considered and an identification of
the property proposed for development by street address, if any, or
by reference to lot and block numbers as shown on the current tax
duplicate in the Municipal Tax Assessor's office and the location
and times at which any maps or documents for which approval is sought
are available for inspection.
A.
Any interested party may appeal to the governing body any decision
of either the Zoning Board of Adjustment or Planning Board, as the
case may be.
B.
Such appeal shall be made within 10 days of the date of publication of such final decision pursuant to § 70-42 of this chapter. The appeal to the governing body shall be made by serving the Borough Clerk, in person or by certified mail, with a notice of appeal specifying the grounds thereof and the name and address of the appellant and name and address of his attorney, if represented. Such appeal shall be decided by the governing body only upon the record established before the Zoning Board of Adjustment or Planning Board, as the case may be. The appellant shall arrange and pay for five copies of a transcript of the Board hearing on the development application and shall deliver the five copies to the Borough Clerk.
C.
Notice of the meeting of the governing body to review the record below shall be given by the governing body by personal service or certified mail to the appellant, to those entitled to notice of a decision pursuant to § 70-42 of this chapter and to the Zoning Board of Adjustment or Planning Board, as the case may be, at least 10 days prior to the date of the meeting. The parties may submit oral and written arguments on the record at such a meeting, and the governing body shall provide for verbatim recording and transcripts of such meeting.
D.
The governing body shall conclude a review of the record below not
later than 45 days from the date of receipt of the transcript of the
hearing, unless the appellant consents in writing to an extension
of such period. Failure of the governing body to hold a hearing and
conclude a review of the record below and to render a decision within
such specified period without written consent of the appellant shall
constitute a decision affirming the action of the Board.
E.
The governing body may reverse, remand or affirm, wholly or in part,
or may modify the final decision of the Zoning Board of Adjustment
or Planning Board, as the case may be. The affirmative vote of a majority
of the full authorized membership of the governing body shall be necessary
to reverse, remand or modify any final action of the Board.
Any decision of the Planning Board or Zoning Board of Adjustment
when acting upon an application for development and any decisions
of the governing body when acting upon an appeal shall be given notice
in the following manner:
A.
A copy of the decision shall be mailed by the Board within 10 days
of the date of decision to the applicant or appellant, or, if represented,
then to his attorney, without separate charge. A copy of the decision
shall also be mailed to any interested party who has requested it
and who has paid the fee prescribed by the Board for such service.
B.
A brief notice of every final decision shall be published in the
official newspaper of the borough. Such publication shall be arranged
by the Secretary of the Planning Board or Zoning Board of Adjustment,
as the case may be, without separate charge to the applicant. The
notice shall be sent to the official newspaper for publication within
10 days of the date of any such decision.
C.
A copy of the decision shall also be filed in the office of the Borough
Clerk, who shall make a copy of such filed decision available to any
interested party upon payment of a fee calculated in the same manner
as those established for copies of other public documents in the borough.
