A.
Regular and alternate members.
[Amended 4-21-1980 by Ord. No. 8-80]
(1)
A Zoning Board of Adjustment is hereby established
pursuant to N.J.S.A. 40:55D-69 et seq. consisting of seven regular
members who are residents of the Borough of Mendham appointed by the
Mayor, with the approval of the Borough Council, to serve for terms
of four years from January 1 of the year of their appointment. The
terms of the regular 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 regular member shall
exceed four years. Thereafter, the term of each regular member shall
be for four years. Nothing this Part 1 shall, however, be construed
to affect the term of any present regular 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.
(2)
In addition to the seven regular members of the Zoning
Board of Adjustment, two alternate members who are residents of the
Borough of Mendham shall be appointed by the Mayor, with the approval
of the Borough Council. Alternate members shall be designated at the
time of appointment by the Mayor as "Alternate No. 1" and "Alternate
No. 2." The terms of the alternate members shall be for two years,
except that the term of the first Alternate No. 2 appointed under
this section shall be for one year. 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.
B.
No member of the Zoning Board of Adjustment may hold
any elective office or position under the municipality.
C.
A vacancy occurring otherwise than by expiration of
a term shall be filled for the unexpired term only.
The Board of Adjustment shall elect a Chairperson
and Vice Chairperson from among its members and shall also select
a Secretary who may or may not be either a Board member or a municipal
employee.
There is hereby created the Office of Attorney
to the Zoning Board of Adjustment. The Zoning Board of Adjustment
may annually appoint and, subject to the appropriation of funds, fix
the compensation of the Zoning Board of Adjustment Attorney, who shall
be an attorney other than the Borough Attorney.
The Zoning Board of Adjustment 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.
The Board shall adopt such rules and regulations
as may be necessary to carry into effect the provisions and purposes
of this Part 1. 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.A. 2A:67A-1 et seq.) shall apply.
A.
The Zoning Board of Adjustment shall have the following
powers:
(1)
To 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 Chapter 215, Zoning.
(3)
Hardship variance; variance from certain zoning provisions.
[Amended 4-21-1980 by Ord. No. 8-80; 7-16-1984 by Ord. No.
11-84]
(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 regulation pursuant to Chapter 215, Zoning, 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.
(b)
Where in an application or appeal relating to a specific piece of property the purposes of N.J.S.A. 40:55D-1 et seq. (New Jersey Municipal Land Use Law) would be advanced by a deviation from the requirements of Chapter 215, Zoning, and the benefits of the deviation would substantially outweigh any detriment, to grant a variance to allow departure from regulations pursuant to Chapter 215, Zoning; 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 section, 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 § 124-9G of this Part 1.
[Amended 6-7-1999 by Ord. No. 15-99]
(4)
In particular cases and for special reasons, to grant a variance to allow departure from regulations pursuant to Chapter 215, Zoning, to permit a use or principal structure in a district restricted against such use or principal structure, an expansion of a nonconforming use, a deviation from a specification or standard pursuant to N.J.S.A. 40:55D-67 pertaining solely to a conditional use, an increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4 or an increase in the permitted density as defined in 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 a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by affirmative vote of at least five members.
[Amended 4-21-1980 by Ord. No. 8-80; 7-16-1984 by Ord. No.
11-84; 6-7-1999 by Ord. No. 15-99]
(5)
To direct issuance of a 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
on the Official Map.
(6)
To direct issuance of a permit pursuant to N.J.S.A.
40:55D-35 for a building or structure not related to a street.
(7)
To grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision or site plan approval pursuant to N.J.S.A. 40:55D-28 through 40:55D-46, or conditional use approval pursuant to N.J.S.A. 40:55D-67, whenever the proposed development requires approval by the Zoning Board of Adjustment of a variance pursuant to Subsection A(4) of this section. 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 Chapter 215, Zoning. The number of votes of Board members required to grant any such subsequent approval shall be as otherwise provided in this Part 1 for the approval in question, and the special vote pursuant to Subsection A(4) of this section shall not be required.
[Amended 4-21-1980 by Ord. No. 8-80]
B.
No variance or other relief may be granted under the provisions of Subsection A(1) through (4) 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 Chapter 215, Zoning.
C.
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 extend the period of time within
which the Zoning Board of Adjustment shall act.
[Amended 7-16-1984 by Ord. No. 11-84]
A.
Appeals to the Board of Adjustment may be taken by any interested person affected by any decision of the Zoning Officer of the Borough based on or made in the enforcement of Chapter 215, Zoning, Building Code or Official Map of the Borough. Each appeal shall be taken within 20 days of the decision appealed from by filing a notice of appeal with the officer from whom the appeal was taken. Said notice of appeal shall specify the grounds of the appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
[Amended 4-21-1980 by Ord. No. 8-80]
B.
The application, addressed to the original jurisdiction
of the Board of Adjustment, without prior application to an administrative
officer, shall be filed with the Secretary of the Zoning Board of
Adjustment. At the time of filing the appeal or application, but in
no event less than 10 days prior to the date set for the hearing,
the applicant shall also file all plot plans, maps or other papers
required by virtue of any provision of this Part 1 or any rule of
the Board of Adjustment.
C.
An appeal to the Board shall stay all proceedings
in furtherance of the action in respect of which the decision appealed
from was made, unless the officer from whom the appeal is taken certifies
to the Board of Adjustment after the notice of appeal shall have been
filed with him or her that by reason of facts stated in the certificate
a stay would, in his or her opinion, cause imminent peril to life
or property. In such case, 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 upon application or notice
to the officer from whom the appeal is taken and upon due cause shown.
D.
An appeal or application to the Board of Adjustment shall be complete for purposes of commencing the applicable time period for action by the Board of Adjustment when so certified by the Board of Adjustment or its authorized designee. In the event that the Board of Adjustment or its designee does not certify the application to be complete within 45 days of the date of its submission, the application shall be deemed complete upon expiration of the forty-five-day period for purposes of commencing the applicable time period unless the application lacks information in the form and substance required by the Application Checklist set forth as Appendix A to Chapter 124,[1] for the particular type of application, which list of
requirements and forms shall be provided to the applicant, and the
Board of Adjustment or its designee has notified the applicant, in
writing, of the deficiencies in the application within 45 days of
submission of the application. The applicant may request that one
or more of the submission requirements be waived, in which event the
Board of Adjustment shall grant or deny the request within 45 days.
Nothing herein shall be construed as diminishing the applicant's obligation
to prove in the application process that he or she is entitled to
approval of the application. The Board of Adjustment may subsequently
require correction of any information found to be in error and submission
of additional information not specified in this Part 1 or the Application
Checklist or any revisions in the accompanying documents as are reasonably
necessary to make an informed decision as to whether the requirements
necessary for approval of the application for development have been
met. The application shall not be deemed incomplete for lack of any
such additional information or any revisions in the accompanying documents
so required by the Board of Adjustment.
[Amended 7-16-1984 by Ord. No. 11-84; 3-21-2005 by Ord. No.
2-05]
[1]
Editor's Note: Appendix A is located at the
end of this chapter.
[Amended 4-21-1980 by Ord. No. 8-80]
The Board of Adjustment shall render its decision
not later than 120 days after the date that an appeal is taken from
the decision of an administrative officer or 120 days after the submission
of a complete application for development to the Board pursuant to
the provisions of N.J.S.A. 40:55D-70b. 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 Part 1. Failure of the Board to render
a decision within the prescribed period or within such further time
as may be consented to by the applicant shall constitute a decision
favorable to the applicant.
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 make such other
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.
Any variance hereafter granted by the Board
of Adjustment permitting the erection or alteration of any structure
or structures, or permitting a specified use of any premises, shall
expire by limitation unless such construction or alteration shall
have been actually commenced on each and every structure permitted
by said variance, or unless such permitted use has actually been commenced,
within one year from the date of entry of the determination of the
Board of Adjustment; except, however, that the running of the period
of limitation herein provided shall be tolled from the date of filing
an appeal from the decision of the Board of Adjustment to the Borough
Council, or to a court of competent jurisdiction, until the termination
in any manner of such appeal or proceeding.
