[1]
Editor's Note: This ordinance was approved by voter referendum
held at the General Election on 11-8-2022, with its provisions to
take effect on 1-1-2023.
Ordinance No. 2022-27 created a Land Use Board, which combined
the Planning Board and Zoning Board of Adjustment. All references
to the Planning Board or Zoning Board of Adjustment shall now refer
to the Land Use Board.
A.
A Land Use Board is established consisting of nine regular and four
alternate members of the following four classes:
(1)
Class I: the Mayor or the Mayor's designee.
(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 to be appointed by it.
(4)
Class IV regular members: 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 Board of Education. A member of the Environmental Commission who
is also a member of the Land Use Board as required by N.J.S.A. 40:56A
shall be a Class IV Land Use Board member.
(5)
Class IV alternate members: four other citizens of the municipality
to be appointed by the Mayor. Alternate members shall meet the qualifications
of Class IV regular members and shall be designated by the governing
body at the time of their appointment as "Alternate No. 1," "Alternate
No. 2," "Alternate No. 3," and "Alternate No. 4."
B.
The term of the member composing Class I shall correspond with their
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. The term of a
Class IV member who is also a member of the Environmental Commission
shall be for three years or terminate at the completion of term of
office as a member of the Environmental Commission, whichever comes
first.
C.
The term of a Class IV member who is also a member of the Board of
Education shall terminate whenever they are no longer a member of
such other body or at the completion of their Class IV term, whichever
comes first.
D.
The terms of Class IV regular members first appointed pursuant to
this chapter shall be so determined that to the greatest practicable
extent the expiration of such term shall be evenly distributed over
the first four years after their appointment, provided that the initial
term shall not exceed four years. Thereafter, the term of each Class
IV regular member shall be four years.
E.
The terms of the Class IV alternate members shall be 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;
provided, however, that in no instance shall the terms of the alternate
members first appointed exceed two years.
F.
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. A vote shall not be delayed in order that a regular
member may vote instead of an alternate member. In the event that
a choice must be made as to which alternate member is to vote, Alternate
No. 1 shall vote.
G.
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. Any member other than a Class I member may be removed
by the governing body for cause, but only after public hearing and
other requested procedural due process protection.
H.
Yearly, the Land Use Board shall organize by selecting from among
its Class IV regular members a Chairman and a Vice Chairman. The Board
shall also select a Secretary who may or may not be a member of the
Board or a municipal employee.
I.
The governing body shall make provisions in its budget and appropriate
funds for the expenses of the Land Use Board.
J.
The office of Land Use Board Attorney is created. The Land Use Board
may annually appoint to such office and fix compensation or rate of
compensation of an attorney at law of New Jersey other than the Municipal
Attorney.
K.
The Land Use 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, however, shall not authorize expenditures which exceed,
exclusive of gifts or grants, the amount appropriated by the governing
body for its use.
The Land Use 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 Township, including any areas outside its boundaries
which, in the Board's judgment, bear essential relation to the planning
of the Township.
B.
Review and either approve or deny subdivision and site plan and conditional
use applications.
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.
Annually, 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 regulations submitted to it
and also pass upon other matters specifically referred to the Land
Use Board by the governing body.
G.
Whenever the proposed development requires approval of a subdivision,
site plan or conditional use, but not a use variance, the Land Use
Board shall receive, review and act upon applications for hardship
variances and applications for special permits. The developer may
elect to submit a separate application requesting approval of the
hardship variance or special permit and a subsequent application for
any required approval of a subdivision, site plan or conditional use.
The separate approval of the hardship variance or special permit shall
be conditioned upon grant of all required subsequent approvals by
the Land Use Board. No such separate approval shall be granted unless
the 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 Land Use Board shall grant
or deny approval of the application within 120 days after the date
of submission of the 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 a separate consecutive
application pursuant to this section, the aforesaid 120-day limitation
shall apply to the application for approval of the hardship variance
or special permit, and the period for granting or denying any subsequent
approval shall be as otherwise provided in this chapter.
[Amended 4-18-2023 by Ord. No. 2023-19]
H.
Pursuant to N.J.S.A. 40:55D-25c(2), the Land Use Board shall exercise,
to the same extent and subject to the same restrictions, all the powers
of a board of adjustment, but the Class I and Class III members shall
not participate in the consideration of applications for development
which involve relief pursuant to Subsection d of section 57 of P.L.
1975, c. 291 (N.J.S.A. 40:55D-70). These powers shall include, in
addition to other powers established by law:
(1)
Hear and decide appeals where it is alleged by the appellant that
there is an error in any order, requirement, decision or refusal made
by any municipal official based on or made in enforcement of the Zoning
Ordinance.
(2)
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.
(3)
Special difficulties or hardship.
(a)
Where, by reason of exceptional narrowness, shallowness or shape
of a specific piece of property, or by reason of exceptional topographic
conditions or physical features uniquely affecting a specific piece
of property or 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 zoning regulation
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.
(b)
Where, in an application or appeal relating to a specific piece of property, the purpose of this chapter set forth in § 142-3 and the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) would be advanced by deviation from the Zoning Ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow the departure from zoning regulations; provided, however, that no variance from those departures enumerated in § 142-67H(4) shall be granted under this subsection; and provided, further, that the proposed development does not require approval by the Land Use Board of a subdivision, site plan or conditional use in conjunction with which the Land Use Board has power to review a request for a variance pursuant to § 142-67G(1).
(4)
Grant a variance to allow departure from zoning regulations in particular
cases and for special reasons to permit:
(a)
A use or principal structure in a district restricted against
such use or principal structure;
(b)
An expansion of a nonconforming use;
(c)
Deviation from a specification or standard pertaining solely
to a conditional use;
(e)
An increase in the permitted density as defined in § 142-7 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 are either an isolated undersized lot or lots resulting from a minor subdivision. A variance under this subsection shall be granted only by the affirmative vote of at least five members.
I.
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 impair the intent
and purpose of the zone plan and Zoning Ordinance.
J.
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 areas as shown on a duly adopted Official
Map of the municipality whenever one or more parcels of land within
the bed cannot yield a reasonable return to the owner unless a building
permit is granted. The Land Use Board may grant such relief only by
an affirmative vote of a majority of the full authorized membership
of the Board, ensuring that such relief will tend to cause a minimum
change of the Official Map and will not significantly add to the cost
of opening any proposed street. 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.
K.
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 Land Use 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 lot 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 fire-fighting 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 general circulation plan element of the municipal Master Plan.
L.
The power to grant subdivision, site plan or conditional use approval whenever the proposed development requires approval of a variance pursuant to Subsection H(4) of this section. The developer may elect to submit subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance shall be conditioned upon the grant of all required subsequent approvals by the Board. 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 the zoning provisions of this chapter. The number of votes of Board 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 H(4) of this section shall not be required.
A.
Conflicts of interest. No member of the Land Use Board shall act
on any matter in which they have either directly or indirectly any
personal or financial interest. Whenever any such member shall disqualify
themself from acting on a particular matter, they 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 the Land Use Board 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 except adjournments shall be taken at any meeting without a quorum being present. All actions shall be taken by a majority of members present at such meeting, except as otherwise provided in this chapter. Failure of a motion to receive the number of votes required to approve an application for development pursuant to the exceptional vote requirements of § 142-67H or J shall be deemed an action denying the application.
(4)
All actions shall be taken by majority vote of the members of the
Board at the meeting except as otherwise required by a provision of
N.J.S.A. 40:55D-1 et seq. A member of the 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
their absence from one or more of the meetings; provided, however,
that such Board member has available to them the transcript of all
the hearings from which they were absent and certifies in writing
to the Board that they have read such transcript or listened to such
recording.
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 Land
Use Board and of the persons appearing by attorney, the action taken
by the Land Use 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 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.
(2)
A verbatim recording shall be made of every hearing. The recording
of the proceedings shall be made either by 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. In the case of an application for a use variance,
a court reporter must also be provided by the applicant. If a transcript
of the proceedings is made, a copy of such transcript shall be furnished
to the municipality at no cost.
D.
Public hearings.
(1)
The Land Use Board shall hold a hearing on each application for development
and 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 Municipal Clerk. 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 they 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.
(6)
Any corporation whose application is the subject of a hearing shall
be represented by an attorney at law of New Jersey.
E.
Public notice of a hearing.
(1)
Public notice of a hearing shall be given for the following applications
for development:
(2)
The Secretary of the Land Use Board 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 in the state and within 200 feet in all directions
of the property which is the subject of the hearing, provided that
this requirement shall be deemed satisfied by notice to the condominium
association, in the case of any unit owner whose unit has a unit above
or below it, or the horizontal property regime, in the case of any
co-owner whose apartment has an apartment above or below it. Notice
shall be given by serving a copy 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 to the property owner at his address
as shown on the 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, vice president, secretary or other person authorized by
appointment or by law to accept service on behalf of the corporation.
Notice to a condominium association, horizontal property regime, community
trust or homeowners' association, because of its ownership of common
elements or areas located within 200 feet of the property which is
subject of the hearing, may be made in the same manner as to a corporation
without further notice to unit owners, co-owners or homeowners on
account of such common elements or areas.
(d)
To the Clerk of any adjoining municipality or municipalities
when the property involved is located within 200 feet of the 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 or 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 Municipal
Clerk.
(h)
To any other agency granted statutory authority to review development
applications and proposals, including but not limited to the Delaware
and Raritan Canal Commission.
(3)
Upon the written request of an applicant, the administrative officer shall, within seven days, make and certify a list from current tax duplicates of names and addresses of owners within the Township to whom the applicant is required to give notice. The applicant shall be charged $0.25 per name or $10, whichever amount is greater, for the 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 Township.
(4)
The applicant shall file an affidavit or proof of service or publication
with the Land Use Board.
(5)
The notice shall state the date, time and place of the hearing; the
nature of the matters to be considered; 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.
F.
Decisions.
(1)
The municipal agency shall include findings of fact and conclusions
based thereon in each decision on any application for development
and shall reduce the decision to writing. The municipal agency shall
provide the findings and conclusions through:
(a)
A resolution adopted at a meeting held within the time period
provided in this chapter for action by the municipal agency on the
application for development; or
(b)
A memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the municipal agency voted to grant or deny approval. Only the members of the municipal agency who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. An action resulting from the failure of a motion to approve an application pursuant to § 142-67H(1) shall be memorialized by resolution as provided above, with those members previously voting for and against the motion for approval being the members eligible to vote on the memorializing resolution. The vote on any such resolution shall be deemed to be a memorialization of the action of the municipal agency and not to be an action of the municipal agency; however, the date of the adoption of the resolution shall constitute the date of the decision for the purpose of the mailings, filings and publications required by § 142-69.
Any decision of the Land Use Board when acting upon an application
for development shall be given notice in the following manner:
A.
A copy of the decision shall be mailed to the applicant or appellant,
or, if represented, then to his attorney, without charge and, for
a reasonable charge, to any interested party who has requested it,
not later than 10 days after the date of the decision.
B.
A brief notice of every final decision shall be published in the
official newspaper of the Township. Such publications shall be arranged
by the administrative officer 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 and all submitted documents of record shall
be filed with the Municipal Clerk.
