[Ord. No. 642; readopted
by Ord. No. 2020-1235]
[1]
Note: References herein to the Board of Adjustment refer to
the Planning Board exercising the powers of the Board of Adjustment.
[Ord. No. 2016-1167; Ord. No. 2016-1168]
There is hereby established, pursuant to N.J.S.A. 40:55D-1 et
seq. generally and N.J.S.A. 40:55D-23 and 40:55D-23.1 specifically,
in the Borough of Manville, a Planning Board of nine members and up
to four alternates as set forth in the statute. The composition of
the member by class and terms shall be as set forth in the statute.
[Ord. No. 2016-1167; Ord. No. 2016-1168]
As of the stated effective date of February 29, 2016 of Ordinance
No. 2016-1168, the powers of the Manville Borough Planning Board shall,
in accord with N.J.S.A. 40:55D-25c(1), include those of a Zoning Board
of Adjustment, and the Manville Borough Planning Board shall exercise
to the same extent and subject to the same restrictions, all the powers
of a Board of Adjustment under applicable New Jersey law. Provided,
however, that the Class I and the Class III members of the Manville
Borough Planning Board shall not participate in the consideration
of applications for development which involve relief pursuant to subsection
d of N.J.S.A. 40A:55D-70.
All prior ordinances inconsistent with this Ordinance No. 2016-1168,
including but not limited to any prior ordinance creating a Manville
Borough Zoning Board of Adjustment, are hereby repealed to the extent
of such inconsistency, and the Manville Borough Zoning Board of Adjustment
is hereby abolished.
If a vacancy in any class shall occur otherwise than by expiration
of the Planning Board term, it shall be filed by appointment, as above
provided, for the unexpired term.
Any member other than a Class I member, after a public hearing
if he or she requests one, may be removed by the governing body for
cause.
A member of the Planning Board who was absent for one or more
of the meetings at which a hearing was held shall be eligible to vote
on the matter upon which the hearing was conducted, notwithstanding
his absence from one or more of the meetings; providing, however,
that such board member has available to him the transcript or recording
of all of the hearing 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 elect a chairman and vice chairman
from members of Class IV, select a secretary who may or may not be
a member of the Planning Board or municipal employee. It may employ,
or contract for, and fix the compensation of legal counsel, other
than the Municipal Attorney, and experts and other staff and services
as it may deem necessary not exceeding the amount appropriated by
the governing body for its use.
The Board shall adopt such rules and regulations as may be necessary
to carry into effect the provisions and purposes of this Ordinance.
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. 2A:67A-1. et seq.) shall apply. It shall also
have the following powers and duties.
a.
Make and adopt, from time to time, amend, a master plan for the development
of the municipality, in accordance with the provisions of C. 40:55D-28.
b.
Receive, review and act upon applications for subdivisions and site
plans in accordance with the provisions of this Ordinance and the
Municipal Land Use Law C.40:55D-1 et seq.
c.
Approve conditional use applications in accordance with the provisions
of the Zoning Ordinance pursuant to C.40:55D-67.
d.
Participate in the preparation and review of programs or plans required
by state or federal law or regulation.
e.
Assemble data on a continuing basis as part of a continuous planning
process.
f.
Annually prepare a program of municipal capital improvement projects
projected over a term of six years, and amendments thereto, and recommend
same to the governing body.
g.
Consider and make report to the governing body within thirty-five
days after referral as to any proposed development regulations submitted
to it pursuant to the provisions of C.40:55D-26(a) and also pass upon
other matter specifically referred to the Planning Board by the governing
body pursuant to the provisions of C.40:55D-26(b).
h.
When reviewing applications for approval of subdivision plate, site
plans or conditional uses, the Planning Board shall have the power
to grant to the same extent and subject to the same restrictions as
the Board of Adjustment:
1.
Variances pursuant to subsection 57c of the Municipal Land Use Law
(40:55D-70c).
2.
Direction pursuant to section 25 of the Municipal Land Use Law (40:55D-34)
for issuance of a permit for a building or structure in the bed of
a mapped street or public drainage way, flood control basin or public
area reserved pursuant to section 23 of the Municipal Land Use Law
(40:55D-32).
3.
Direction pursuant to section 27 of the Municipal Land Use Law (40:55D-34)
for issuance of a permit for a building or structure not abutting
a street.
i.
Perform such other advisory duties as are assigned to it by ordinance
or resolution of the governing body for the aid and assistance of
the governing body or other agencies or officers.
The Mayor may appoint one or more persons as a citizens advisory
committee to assist or collaborate with the Planning Board in its
duties, but such person or person shall have no power to vote or take
other action required by the Board. Such person or persons shall serve
at the pleasure of the Mayor.
Whenever the Environmental Commission has prepared and submitted
to the Planning Board an index of the natural resources of the municipality,
the Planning Board shall make available to the Environmental Commission
an Informational copy of every application for development to the
Planning Board. Failure of the Planning Board to make such informational
copy available to the Environmental Commission shall not invalidate
any hearing or proceeding.
[Ord. No. 2016-1168]
Effective February 29, 2016 the Zoning Board of Adjustment is
abolished and the Planning Board shall exercise all the powers of
a Board of Adjustment.
[Deleted by Ord. No. 2016-1168]
The Board of Adjustment shall have such powers as are granted
by law 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 official or agency based on or made in the enforcement
of the zoning ordinance.
b.
Hear and decide requests for interpretation of the map or zoning
ordinance, or for decisions upon other special questions upon which
such Board is authorized by the Zoning Ordinance to pass.
c.
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 pursuant to the Zoning Ordinance of the Borough 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, including a variance for a conditional use; 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 subsection 47a of the Municipal Land Use Law (40:55D-60) and Section 30-201.7h of this Ordinance; and
d.
In particular cases and for special reasons, grant a variance to
allow departure from regulations pursuant to the Zoning Ordinance
of the Borough, including, but not limited to, allowing a structure
or use in a district restricted against such structure or use, but
only by affirmative vote of at least five members.
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 zone plan and Zoning Ordinance.
Any application under any subsection of this section may be referred
to any appropriate person or agency, for its report provided that
such reference shall not exceed the period of time within which the
Zoning Board of Adjustment shall act.
a.
The Zoning Board of Adjustment shall, in addition to the powers specified in Section 30-202.7, have power given by law to:
1.
Direct issuance of a permit pursuant to section 25 of the Municipal
Land Use Law (40:55D-34), for a building or structure in the bed or
a mapped street or public drainageway, flood control basin or public
area reserved on the official map.
2.
Direct issuance of a permit pursuant to section 27 of the Municipal
Land Use Law (40:55D-36) for a building or structure not abutting
a street.
b.
The Zoning 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 pursuant to this article, or conditional use approval pursuant to section 54 of the Municipal Land Use Law (40:55D-67) and the provisions of the Zoning Ordinance of the Borough of Manville, whenever the proposed development requires approval by the Zoning Board of Adjustment of a variance pursuant to subsection d of section 57 of the Municipal Land Use Law (40:55D-70) being Section 30-202.7 d of this Ordinance. 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. 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 zone plan and zoning ordinance. The number of votes and board members required to grant any such subsequent approval shall be as otherwise provided in the Act and this Ordinance for the approval in question, and the special vote pursuant to the aforesaid subsection d of section 57 of the Municipal Land Use Law shall not be required.
c.
Whenever an application for development requests relief pursuant to subsection b of this section, the Zoning Board of Adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the administrative officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid 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 the Municipal Land Use Law. Failure of the Board to act within the period prescribed shall constitute approval of the application and a certificate of the Administrative Officer as to the failure of the Zoning Board of Adjustment to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval, herein required, and shall be so accepted by the county recording officer for purposes of filing subdivision plats.
In exercising the above mentioned power, the Board of Adjustment
may, in conformity with the provisions of C.291, P.L. 1975 or amendments
thereto or subsequent statutes applying reverse or affirm wholly or
partly or may modify the other, requirement, decision, or determination
appealed from, and make such order 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.
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 pursuant to the provisions
of C. 40:55D-73.
Failure of the Board to render a decision within such 120 day
period or within such further time as may be consented to by the applicant
shall constitute a decision favorable to the applicant.
[Deleted by Ord. No. 2016-1168]
a.
Appeals to the Board of Adjustment may be taken by any interested
party affected by any decision of an Administrative Officer of the
municipality based on or made in the enforcement of the Zoning Ordinance
or official map. Such appeal shall be taken within 20 days by filling
a notice of appeal with the officer from whom the appeal is taken
specifying the grounds of such appeal. The officer from whom the appeal
is taken shall immediately transmit to the Board of Adjustment all
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 Administrative Officer; provided, however, that such direct
application may not be used to circumvent the time limitation set
forth in paragraph a above.
No member of the Planning Board 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.
The Board shall by its rules fix the time and place for holding
its regular meetings for business authorized to be conducted by the
board. Regular meetings of the board shall be scheduled not less than
once a month and shall be held as scheduled unless cancelled for lack
of applications for development to process. The board may provide
for special meetings, at the call of the chairman, or on the request
of any two of its members, which shall be held on notice to its members
and the public in accordance with municipal regulations.
No action shall be taken at any meeting without a quorum being
present.
All actions shall be taken by a majority vote of the members
of the board present at the meeting, except as otherwise required
by sections 23, 25, 49, 50 and subsections 8e, 17a, 17b and 57d of
the Municipal Land Use Law.
Minutes of every regular or special meeting shall be kept and
shall include the names of the persons appearing and addressing the
Board and of the person appearing by attorney, the action taken by
the Board, the findings, if any, made by it and reasons therefor.
The minutes shall thereafter be made available for public inspection
during normal business hours at the office of the Municipal Clerk.
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. Such interested party may be charged
a fee for reproduction of the minutes for his use as provided for
in the rules of the Board.
a.
Oaths.
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"
C. 38, P.L 1953 (C. 2A:67A-1 et seq.) shall apply.
b.
Testimony.
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.
c.
Evidence.
Technical rules of evidence shall not be applicable to the hearing,
but the Board may exclude irrelevant, immaterial or unduly repetitious
evidence.
d.
Records.
The Board shall provide for the verbatim recording of the proceedings
by either stenographer, mechanical or electronic means. The Board
shall furnish a transcript, or duplicate recording in lieu thereof,
on request to any interested party at his expense. The Board, in furnishing
a transcript of the proceedings to an interested party at his expense
shall not charge such interested party more than the actual cost of
preparing the transcript or tape. Said transcript shall be certified
in writing by the transcriber to be accurate.
a.
Each decision on any application for development shall be reduced
to writing as provided in this subsection, and shall include findings
of facts and conclusions based thereon.
b.
Failure of a motion to approve an application for development to
receive the number of votes required by approval shall be deemed an
action denying the application.
c.
The Board may provide such written decision and findings and conclusions
either on the date of the meeting at which the board takes to grant
or deny approval, or, if the meeting at which such action is taken
occurs within the final 45 days of the applicable time period for
rendering a decision on the application for development, within 45
days of such meeting by the adoption of a resolution of memorialization
setting forth the decision and the findings and conclusions of the
Board thereon. An action resulting from the failure of a motion to
approve an application shall be memorialized by resolution as provided
above, notwithstanding the time at which such action occurs within
the applicable time period for rendering a decision on the application.
d.
The adoption of a resolution of memorialization pursuant to this
subsection shall not be construed to alter the applicable time period
for rendering a decision on the application for development. Such
resolution shall be adopted by a vote of a majority of the members
of the board who voted for the action previously taken, and no other
member shall vote thereon. The vote on such resolution shall be deemed
to be a memorialization of an action of the Board, and not to be an
action of the board; except that failure to adopt such a resolution
within the 45 day period shall result in the approval of the application
for development, notwithstanding any prior action taken thereon.
a.
A copy of the decision shall be mailed by the board within 10 days
of the date of decision to the applicant, or if represented then to
his attorney, without separate charge, and to all who request a copy
of the decision and have paid the fee established by the Board for
such service. 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.
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, without separate charge to
the applicant. The period of time in which an appeal of the decision
may be made shall run from the first publication of the decision.
Pursuant to the provisions of C. 40:55D-39 and C. 40:55D-65,
every application for development submitted to the Planning Board
shall be accompanied by proof that no taxes or assessments for local
improvements are due or delinquent on the property which is the subject
of such application; or, if it is shown that taxes or assessments
are delinquent on said property, any approvals or other relief granted
by either board shall be conditioned upon either the prompt payment
of such taxes or assessments, or the making of adequate provision
for the payment thereof in such manner that the municipality will
be adequately protected.
a.
Regulations of the development of land and the attachment of reasonable
conditions to development applications is an exercise of valid police
power delegated by the state to this municipality. The applicant has
the duty of compliance with reasonable conditions laid down by the
Approving Authority for design, dedication, improvements, and the
use of land so as to conform to the physical and economic development
of the municipality and to the safety and general welfare of the future
residents and/or owners in the development and in the community at
large.
b.
Where County Planning Board review or approval is required on a subdivision
or site plan, the Approving Authority shall condition any approval
it grants upon either timely receipt of a favorable report by the
County Planning Board or approval by the County Planning Board.
The Approving Authority is encouraged to seek advice from other
boards, agencies, and departments of the Borough, such as the Fire
Company, Police Department, Board of Health, Board of Education, and
Rescue Squad, with respect to any application for land development
or utilization.
The referral of any matter to any appropriate person or agency
shall not extend the period of time within which the Approving Authority
shall act.
