[Amended 10-19-2004 by Ord. No. 1181; 1-20-2009 by Ord. No. 1288; 9-1-2009 by Ord. No. 1315]
A. The Planning Board shall have the following powers,
which were previously vested in the Zoning Board of Adjustment:
(1) To 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 an administrative officer based on or made in the
enforcement of the zoning provisions of this chapter.
(2) To hear and decide, in accordance with the provisions
of any such ordinance, 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 N.J.S.A. 40:55D-1 et seq.
(3) 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 regulations
would result in peculiar and exceptional practical difficulties to
or exceptional and undue hardship upon the developer of such property,
to 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 conditional
use; provided, however, that no variance shall be granted 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 pursuant to N.J.S.A. 40:55D-60a.
(4) 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 requirements and the benefits of the
deviation would substantially outweigh any detriment, to grant a variance
to allow departure from such zoning requirements; 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 below
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.
(5) Variances.
(a)
In particular cases and for special reasons,
to grant a variance to allow departure from the zoning provisions
of this chapter 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 particular specification or
standard set forth in this chapter as pertaining solely to a conditional
use.
[4]
An increase in the permitted floor area ratio
as defined in this chapter and in N.J.S.A. 40:55D-4.
[5]
An increase in the permitted density as defined
in this chapter and in N.J.S.A. 40:55D-4, excepted 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, in which event applications
would be made pursuant to this subsection.
[6]
A height of a principal structure which exceeds
by 10 feet or 10% the maximum height permitted in the district for
a principal structure.
(b)
A variance under this subsection shall be granted
only by affirmative vote of at least five members of the Board.
(c)
It shall be the responsibility of any applicant
for a use variance to assure that the hearing will be recorded verbatim
by a court reporter, whether or not the means for doing so are provided
by the Board.
(d)
A variance under this subsection shall expire
if no construction, alteration or conversion relative to the nonconforming
use has been commenced within one year of the date of the Board's
decision to grant the variance. For variances granted prior to the
effective date of this subsection, the one-year period shall commence
as of the effective date of this subsection. For variances which become
the subject of litigation, the one-year period shall commence on the
date of the last reviewing court's decision to grant the variance.
For good cause shown and after a hearing before the Board on notice
in the manner required for original variance applications, the Board
may extend the variance by resolution. Any extension may not exceed
one year in duration, and no more than four extensions shall be permitted.
To receive consideration, an application for extension of a variance
shall be made prior to the expiration of the time limit sought to
be extended.
(e)
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, unless such variance or other relief
can be granted without substantial detriment to the public good and
without substantially impairing the intent and purpose of the zoning
plan and other provisions of this chapter. An application under this
section may be referred to any appropriate person or agency, including
the Planning Board, pursuant to N.J.S.A. 40:55D-26, for its report,
provided that such reference shall not extend the period of time within
which the Zoning Board of Adjustment shall act.
(f)
If an application development requests one or more variances but not a variance for a purpose enumerated in Subsection
A(5)(a) of this section, the decision on the requested variance or variances shall be rendered under Subsections
A(3) and
(4) of this section.
B. The Zoning Board of Adjustment shall have such other
powers, including the following:
(1) Direct issuance of a construction 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 pursuant to N.J.S.A. 40:55D-32.
(2) Direct issuance of a construction permit pursuant
to N.J.S.A. 40:55D-36 for the construction of a building or structure
not related to a street.
(3) 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 proposed development requires approval by the Board of Adjustment of a variance. 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 Board of Adjustment. No 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 provisions. 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 §
450-145A(5) of this chapter shall not be required.
(4) Whenever an application for development requests relief pursuant to Subsection
B(3) of this subsection, the 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 this chapter. Failure of the Board of Adjustment 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 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.
(5) Whenever review or approval of the application by
the County Planning Board is required by Section 5 of P.L. 1968, c.
285 (N.J.S.A. 40:27-6.3), in the case of a subdivision or Section
8 of P.L. 1968, c. 285 (N.J.S.A. 40:27-6.6), in the case of a site
plan, the Zoning Board of Adjustment shall condition any approval
that it grants upon timely receipt of a favorable report on the application
by the County Planning Board or approval by the County Planning Board
by its failure to report thereon within the required time.
C. Wherever
the words "Zoning Board of Adjustment" appear within the Code of the
Borough of Haddon Heights, said words shall now read "Planning Board."
[Amended 10-19-2004 by Ord. No. 1181]
A. Meetings.
(1) Meetings of both the Planning Board and Zoning Board
of Adjustment shall be scheduled no less often than once a month and
shall be held as scheduled unless canceled for lack of pending applications.
(2) Special meetings may be held at the call of the Chair
or at the request of any two Board members. The members of the respective
Board and the public shall be given notice of such meeting 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 the
members of the Board present at the meeting except as otherwise required
by a provision of N.J.S.A. 40:55D-1 et seq. Failure of a motion to
receive the number of votes required to approve an application for
development shall be deemed an action denying the application. 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 a matter upon which
the hearing was conducted, notwithstanding his absence from one or
more of the meetings; provided, however, that a transcript or recording
of all of the hearing from which he was absent exists, and provided
further that such Board member certifies in writing to the Board that
he has read such transcript or listened to such recording.
(5) All regular meetings and all special 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. An executive session for the purpose of discussing and
studying any matters to come before either Board shall not be deemed
a regular meeting in accordance with the provision of N.J.S.A. 40:55D-9.
(6) Minutes of every regular or special meeting shall
be kept and shall include the names of the persons appearing and addressing
the municipal agency and of the persons appearing by attorney, the
action taken by the municipal agency, 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 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. Such interested
party may be charged a reasonable fee for reproduction of the minutes
for his use.
B. Public hearings.
(1) The Planning Board or Zoning Board of Adjustment shall
hold a hearing on each application for development, adoption, revision
or amendment of the Master Plan, each application for approval of
an outdoor advertising sign submitted to the municipal agency as required
pursuant to an ordinance adopted under Subsection g of Section 29.1
of P.L. 1975, c. 291 (N.J.S.A. 40:55D-39) or any review undertaken
by the Planning Board pursuant to Section 22 of P.L. 1975, c. 291
(N.J.S.A. 40:55D-31). 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 Zoning Enforcement Officer. The applicant
may produce other documents, records or testimony at the hearing to
substantiate, clarify or supplement the previously filed maps and
documents.
(3) Every application for development submitted to the
Planning Board or Zoning Board of Adjustment 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.
(4) The officer presiding at the hearings, 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.
(5) 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.
(6) Technical rules of evidence shall not be applicable
to the hearing, but the Board may exclude irrelevant, immaterial or
unduly repetitious evidence.
(7) The municipal agency shall provide for the verbatim
recording of the proceedings by either stenographer, mechanical or
electronic means at the developer's expense.
(8) 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.
(a)
Failure of a motion to approve an application
for development to receive the number of votes required for approval
shall be deemed an action denying the application.
(b)
The municipal agency may provide such written
decisions and findings and conclusions either on the date of the meeting
at which the municipal agency 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 municipal agency
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.
(c)
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 municipal agency 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 municipal
agency and not to be an action of the municipal agency, except that
failure to adopt such a resolution within the forty-five-day period
shall result in the approval of the application for development, notwithstanding
any prior action taken thereon.
(d)
Whenever a resolution of memorialization is adopted in accordance with this subsection, the date of such adoption shall constitute the date of the decision for purposes of the mailings, filings and publications required by Subsection
B(9) and
(10) of this section.
(9) A copy of the decision shall be mailed by the municipal
agency 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 for a reasonable fee. A
copy of the decision shall also be filed by the municipal agency in
the office of the Zoning Enforcement Officer. The administrative officer
shall make a copy of such filed decision available to any interested
party for a reasonable fee and available for public inspection at
his office during reasonable hours.
(10)
A brief notice of the decision shall be published
in the official newspaper of the municipality, if there is one, or
in a newspaper of general circulation in the municipality. Such publication
shall be arranged by the applicant unless a particular municipal officer
is so designated by ordinance, provided that nothing contained in
this chapter shall be construed as preventing the applicant from arranging
such publication if he so desires. The municipality may make a reasonable
charge for its publication. The period of time in which an appeal
of the decision may be made shall run from the first publication of
the decision, whether arranged by the municipality or the applicant.
C. Notice of applications.
(1) Public notice of a hearing shall be given by the applicant
for the following applications for development:
(a)
Any request for a variance.
(b)
Any request for conditional use approval.
(c)
Any request for issuance of a permit to build
within the bed of a mapped street or public drainageway or on a lot
not abutting a street.
(d)
Any request for approval of a major or minor
site plan and/or subdivision.
(e)
Any request for approval of a planned development.
(f)
In addition, public notice shall be given by
a public entity seeking to erect an outdoor advertising sign on land
owned or controlled by a public entity as required pursuant to Section
22 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-31) or, if so provided by
ordinance adopted pursuant to Subsection g of Section 29.1 of P.L.
1975, c. 291 (N.J.S.A. 40:55D-39), by a private entity seeking to
erect an outdoor advertising sign on public land or on land owned
by a private entity.
(g)
Any request for certification or approval of any pre-existing
nonconforming use or structure pursuant to N.J.S.A. 40:55D-68.
[Added 9-19-2017 by Ord.
No. 1445]
(2) The Secretary of the Planning Board or Zoning Board
of Adjustment, as the case may be, shall notify the applicant at least
10 working days 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 Borough, if there is one, or in a newspaper of general circulation
in the Borough in the absence of an official newspaper.
(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 such 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 to 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 thereof on the
property owner as shown on said 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. Pursuant to the provisions of N.J.S.A. 40:55D-14, it
is not required that a return receipt be obtained.
(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 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. 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 said adjoining municipality or municipalities. 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 as shown on the County Official Map or the County
Master Plan, adjoining other county land or situated within 200 feet
of a municipal boundary. Notice shall be given by personal service
or certified mail.
(f)
To the Commissioner of Transportation of the
State of New Jersey when the property abuts a state highway. Notice
shall be given by personal service or certified mail.
(3) Upon the written request of an applicant, the Tax Assessor or Tax Assessor's secretary shall, within seven days, make and certify a list from current tax duplicates of names and addresses of owners within the Borough to whom the applicant is required to give notice. In addition, the administrative officer shall include on the list the names, addresses and positions of those persons who, not less than seven days prior to the date on which the applicant requested the list, have registered to receive notice pursuant to Subsection
C(7) of this section. The applicant shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner or to any public utility, cable television company, or local utility not on the list shall not invalidate any hearing or proceeding.
[Amended 8-21-2012 by Ord. No. 1385]
(4) The applicant shall be responsible for giving proper
notice to all property owners.
(5) The applicant shall file an affidavit of proof of
service with the Planning Board or Zoning Board of Adjustment, as the case may be, together with a copy of the required
notices to the Board Secretary two days before the hearing.
(6) The notice shall state the date, time and place of
the hearing and the nature of the matters to be discussed, including
a precise description of any requested variances or design standard
waivers; 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 Borough Tax Assessor's
office; and the location and times at which any maps or documents
for which approval is sought are available for inspection.
(7) Notice of hearings on applications for approval of
a major subdivision or a site plan not defined as a minor site plan
under this chapter requiring public notice pursuant to this section
shall be given, in the case of a public utility, cable television
company or local utility which possesses a right-of-way or easement
within the municipality and which has registered with the municipality
in accordance with Section 5 of P.L. 1991, c. 412 (N.J.S.A. 40:55D-12.1),
by serving a copy of the notice on the person whose name appears on
the registration form on behalf of the public utility, cable television
company or local utility or by mailing a copy thereof by certified
mail to the person whose name appears on the registration form at
the address shown on that form.
(8) The applicant shall file an affidavit of proof of
service with the municipal agency holding the hearing on the application
for development in the event that the applicant is required to give
notice pursuant to this section.
Any interested party may appeal to the Superior
Court any final decision of the Zoning Board of Adjustment or Planning
Board.
Any decision of the Planning Board or Zoning
Board of Adjustment when acting upon an application for development
and any decision of the governing body when acting upon an appeal
shall be given notice in the following manner:
A. Within 10 days of the date of decision or date of
memorialization, a copy thereof shall be mailed without separate charge
by the appropriate municipal authority to the applicant or appellant
or to any attorney by whom represented. A copy of the decision shall
also be mailed within 10 days to any interested party who has requested
it and who has paid the fee prescribed by the municipal authority
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, the Secretary of
the Zoning Board of Adjustment or the Borough Clerk, 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 that established for copies of other public
documents in the Borough.
Fees for applications or for the rendering of
any service by the Planning Board or Zoning Board of Adjustment or
any member of their administrative staffs which is not otherwise provided
by ordinance may be provided for and adopted as part of the rules
of the Board, and copies of said rules or of the separate fee schedule
shall be available to the public.
Pursuant to the provisions of N.J.S.A. 40:55D-39
and 40:55D-65, every application for development submitted to the
Planning Board or to the Zoning Board of Adjustment 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.