A Zoning Board of Adjustment is hereby established pursuant to N.J.S.A. 40:55D-69 et seq., consisting of seven residents of the Township of Montclair appointed by the governing body 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 for 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.
No member of the Zoning Board of Adjustment may hold any elective office or position with the municipality.
A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
Four alternate members shall also be appointed by the governing body to serve for a term of two years. Alternate members shall be designated by the governing body as "Alternate No. 1," and "Alternate No. 2," "Alternate No. 3," and "Alternate No. 4" and shall serve in rotation during the absence or disqualification of any regular member or members. The terms of no more than two alternate members shall expire in the same 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.
[Amended 1-20-2015 by Ord. No. O-15-002]
The Board of Adjustment shall elect a Chair and Vice Chair from its members and shall also select a Secretary and Assistant Secretary, who may or may not be Board members or municipal employees.
There is hereby created the office of Attorney to the Zoning Board of Adjustment. The Zoning Board of Adjustment may annually appoint, fix the compensation of or agree upon the rate of compensation of the Zoning Board of Adjustment Attorney, who shall be an attorney other than a member of the Township Law Department.
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 chapter. 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.
The powers of the Zoning Board of Adjustment shall be in accordance with N.J.S.A. 40:55D-69 et seq., and amendments and supplements thereto, and with the provisions of this chapter.
It is further the intent of this chapter to confer upon the Zoning Board of Adjustment as full and complete powers as may lawfully be conferred upon such Board, including, but not by way of limitation, the authority, in connection with any case, action or proceeding before the Board, to interpret and construe the provisions of this chapter or any term, clause, sentence or word hereof and the Zoning Map in accordance with the general rules of construction applicable, to legislative enactments.
The Board may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances from the terms of Chapter 347, Zoning, in accordance with the general or specific rules contained herein and with the general rules hereby laid down, that equity shall be done in cases where the strict construction of the provisions of that chapter would work undue hardship. The powers and duties of the Board having been delegated to and imposed upon it by statute, the Board shall in all cases follow the provisions applicable to it in N.J.S.A. 40:55D-1 et seq. or subsequent statutes in such case made and provided, and it shall from time to time furnish to any person requesting the same a copy of its rules and information as to how appeals or applications may be properly filed with the Board for its decision thereon.
Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of the Zoning Officer based on or made in the enforcement of Chapter 347, Zoning, or official map. Each appeal shall be taken within the 20 days prescribed by the statute by filing a notice of appeal with the officer from whom the appeal is taken, together with three copies of said notice with the Secretary of the Board of Adjustment. Said notice of appeal shall specify the grounds for said appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken.
[Amended 7-21-2015 by Ord. No. O-15-016]
Applications addressed to the original jurisdiction of the Board of Adjustment without prior application to the Zoning Officer shall be filed with the Secretary of the Board of Adjustment at least 25 days before the monthly meeting of the Board. The applicant shall obtain all necessary forms from the Secretary of the Board, who shall inform the applicant of the steps to be taken to initiate application and of the regular meeting dates of the Board. As used in this chapter, a complete application shall mean an application certified as complete by the Secretary of the Board pursuant to § 202-31.
[Amended 7-21-2015 by Ord. No. O-15-016]
An appeal to the Board of Adjustment stays all proceedings in furtherance of the action in respect of which the decision appealed from was made unless the officer from whose action 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 cases, proceedings shall not be stayed other than by an order of the Superior Court of New Jersey on application or notice to the officer from whose action the appeal is taken and on due cause shown.
[Amended 7-21-2015 by Ord. No. O-15-016]
In exercising the above-mentioned power, the Board of Adjustment may, in conformity with the provisions of N.J.S.A. 40:55D-1 et seq., or amendments thereto or subsequent statutes applying, reverse or affirm, wholly or in part, 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 Zoning Officer from whom the appeal was taken.
Any variance from the terms of Chapter 347, Zoning, 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 publication of the notice of the judgment or 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 governing body or to a court of competent jurisdiction until the termination in any manner of such appeal or proceeding. The Board of Adjustment or the Planning Board, whichever gave the original approval, may grant an extension of time beyond the one-year limitation upon written request of the owner.
The Board of Adjustment shall have such powers as are granted by law 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 officer based on or made in the enforcement of Chapter 347, Zoning.
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 347, Zoning, 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.
Where in an application or appeal relating to a specific piece of property the purposes of the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) would be advanced by a deviation from the requirements of Chapter 347, Zoning, and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to Chapter 347, Zoning; provided, however, that no variance from those departures enumerated in Subsection A(4) 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 § 202-7H(l)(a).
In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to Chapter 347, Zoning, to permit a use or principal structure in a district restricted against such use or principal structure, an expansion of a nonconforming use, deviation from a specification or standard pertaining solely to a conditional use, an increase in permitted floor area ratio, an increase in permitted density 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% 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.
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 Chapter 347, Zoning. Any application under any subsection of this section may be referred to any appropriate person or agency, including the Planning Board, for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.
The Board of Adjustment shall in addition to the powers specified in § 202-21, have power given by law in accordance with N.J.S.A. 40:55D-76, as amended and supplemented, 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; or
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-35 for a building or structure not related to a street.
The 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 N.J.S.A. 40:55D-37 et seq., or conditional use approval pursuant to N.J.S.A 40:55D-67 whenever the Board is reviewing an application for approval of a use variance pursuant to § 202-21A(4) of this chapter.
The developer may elect to submit a separate application requesting approval of the variance and a subsequent application for any required approval of 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 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 347, Zoning. 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 § 202-21A(4) hereof shall not be required.
The Board of Adjustment shall render decision not later than 120 days after the date an appeal is taken from the decision of the administrative officer or the date of the submission of a complete application for development to the Board pursuant to the provisions of N.J.S.A. 40:55D-72b. Failure of the Board to render a decision within such one-hundred-twenty-day period or within such further times as may be consented to by the applicant shall constitute a decision favorable to 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.
Whenever review or approval of the application by the County Planning Board is required by N.J.S.A. 40:27-6.3, in the case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a site plan, the 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.