A.
Establishment and composition.
(1)
A Board of Adjustment is hereby established pursuant to N.J.S.A. 40:55D-69 et seq., consisting of seven regular members who shall be residents of the Village appointed by the Board of Commissioners to serve for terms of four years from January 1 of the year of their appointment. The terms of the members first appointed shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be distributed evenly over the first four years after their appointment, provided that the initial term of no member shall exceed four years. Thereafter, the term of each member shall be four years. Nothing in this chapter shall, however, be construed to affect the term of any present member of the Zoning Board of Adjustment, all of whom shall continue in office until the completion of the term for which they were appointed. There shall also be appointed by the Board of Commissioners two residents of the Village who shall serve as alternate members of the Board for a term of two years each. The alternate members first appointed shall be appointed one for one year and the other for two years, with each term thereafter being for two years. Alternate members shall, at the time of their appointment, be designated as "Alternate No. 1" and "Alternate No. 2." Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member. 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.
(2)
No member of the Board of Adjustment may hold any elective office or position in the Village.
(3)
A vacancy occurring otherwise than by expiration of the term shall be filled for the unexpired term only.
B.
Board of adjustment authority.
(1)
No variance or other relief may be granted under the provisions of this section unless granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the Zone Plan and Zoning Ordinance.
(2)
The Board of Adjustment shall have powers 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 (Chapter 96).
(b)
Hear and decide requests for interpretation of the Zoning Map or Ordinance or for decisions upon which such Board is authorized to pass by any zoning or official map ordinance in accordance with this chapter.
(c)
Hardship and use variances.
[1]
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 regulation pursuant to Article VIII 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 such difficulties or hardship; or
[2]
Where, in an application or appeal relating to a specific piece of property, the purposes of this chapter would be advanced by a deviation from the Zoning Ordinance (Chapter 96) requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to Article VIII of this chapter; 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 § 96A-7B(2)(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 § 96A-19.
[3]
A variance under this subsection shall be granted by affirmative vote of the majority of the Board members in attendance at the hearing. A tie vote shall be ruled as a denial of the variance request. Board members who are absent from the hearing can subsequently vote on the application at a future meeting provided they affirm that they have listened to the tape recording or read the transcript of the previous hearing.
(d)
Variance to allow departure from certain regulations.
[1]
In particular cases for special reasons, grant a variance to allow departure from regulations pursuant to § 96A-18 of this chapter 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 pursuant to Section 54 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-67) pertaining solely to a conditional use;
[d]
An increase in the permitted floor area ratio as defined in Section 3.1 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-4);
[e]
An increase in the permitted density as defined in Section 3.1 of P.L. 1975, c. 291 (N.J.S.A. 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 are either an isolated undersized lot or lots resulting from a minor subdivision; or
[f]
A height of a principal structure which exceeds by 10 feet or 10% the minimum height permitted in the district for a principal structure.
[2]
A variance under this subsection shall be granted only by affirmative vote of at least five members, of the Board of Adjustment. The applicant may defer the vote on any application if a full Board is not in attendance.
(e)
If an application for development requests one or more variances but not a variance for a purpose enumerated in § 96A-7B(2)(d) above in this section, the decision on the requested variance or variances shall be rendered under § 96A-7B(2)(c) of this section.
(f)
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 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 (N.J.S.A. 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 Zoning Board of Adjustment shall act.
C.
Appeals and applications.
(1)
Appeals to the Board of Adjustment may be taken by any interested party within 20 days of the action by the officer from whom the appeal is taken. Three copies of the notice shall be filed with the Secretary of the Board of Adjustment, specifying the grounds for the appeal. The officer from whom the appeal is taken shall transmit to the Board all the papers constituting the record.
(2)
Applications to the Board of Adjustment without prior application to an administrative officer shall be filed with the Secretary of the Zoning Board of Adjustment. Three copies of the application shall be filed along with all plot plans, maps or other papers required by this chapter or rule of the Board of Adjustment.
(3)
An appeal stays all proceedings unless the officer from whom the appeal is taken certifies to the Board of Adjustment 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 Board of Adjustment 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.
(4)
Any application may be referred to any person or agency for its report, provided such reference shall not extend the period of time within which the Board of Adjustment shall act.
D.
Power to reverse or modify decisions. The Board of Adjustment may reverse or affirm, wholly or partly, or may modify the order, 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.
E.
Time for decision. Unless a longer period is consented to by the applicant, the Board of Adjustment shall render its decision not later than 120 days after the date an appeal is taken from the decision of an administrative officer or no later than 120 days after the submission of a complete application for development without prior applications to an administrative officer. If the developer elects to submit separate consecutive applications for a use variance followed by other subdivision, site plan or conditional use approvals, the aforesaid provision shall apply to the application for approval of the use variance. The period for granting or denying any subsequent approval(s) shall be as otherwise provided in this chapter. Failure of the Board to render a decision within the period prescribed or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.
F.
Expiration of a variance. In the granting of hardship and use variances, a time limit of one year from the date of the variance approval shall be set, within which time the owner shall secure a building permit; otherwise, the variance granted shall be null and void. The approving authority may, for good cause shown, extend the period for securing a building permit for an additional period not exceeding one year.