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 Borough of South River appointed by the governing body to serve for a term of four years from January 1 of the year of their appointment. 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 under the Borough.
A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
No member of the Zoning Board of Adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.
A member may, after a public hearing if he requests it, be removed by the governing body for cause.
There shall be two alternate members of the Board of Adjustment appointed by the governing body. The alternate members shall be designated at the time of appointment by the governing body as "Alternate No. 1" and Alternate No. 2." The terms of the alternate members shall be such that the term of not more than one alternate member shall expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years.
The alternate member may participate in discussion 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.
No alternate member of the Board of Adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.
An alternate member may, after a public hearing if he requests one, be removed by the governing body for cause.
The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary, who may be either a Board member or another municipal employee.
There is hereby created the position of Attorney to the Zoning Board of Adjustment, appointed by the Zoning Board of Adjustment. The Zoning Board of Adjustment shall annually appoint and fix the compensation of the Zoning Board of Adjustment Attorney for all legal services, including, but not limited to, regular and special meetings of the Board, litigation and such other legal services as may be deemed necessary by the Board. The Board of Adjustment Attorney shall be an attorney other than the Municipal Attorney or Planning Board Attorney. The Board shall not, however, exclusive of gifts or grants, exceed the amount appropriated by the governing body for its use.
The Zoning Board of Adjustment may also employ or contract for the services of planning and/or engineering consultants and their staff and other services as it may deem necessary. The Board shall not, however, exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
The Board shall adopt bylaws governing its procedural operation and such rules/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 Board of Adjustment shall have such powers as are granted by law to:
Hear and decide appeals where it is alleged by the applicant that there is an error in any order, requirement, decision or refusal made by an Administrative Official based on or made in the enforcement of the Zoning Ordinance, pursuant to N.J.S.A. 40:55d-70a. 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 partly or may modify the order, requirement, decision, 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.
Hear and decide requests for interpretation of the Zoning Map or Zoning Ordinance or for decisions upon other special questions upon which such Board is authorized to pass by the Zoning Ordinance, pursuant to N.J.S.A. 40:55D-70b.
Variances. a) Where, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property or by reason of exceptional topographical 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 the Zoning Ordinance 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, 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 act or the Educational Facilities Construction and Financing Act would be advanced by a deviation from the Zoning Ordinance requirements and the benefits or the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to Zoning Ordinance; provided, however, that no variance from those departures enumerated in Subsection 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.
In particular cases and for special reasons, grant a variance to allow departure restricted against such a) use or principal structure not permitted; b) an expansion of a nonconforming use; c) deviation from a specification or standard pursuant to 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 N.J.S.A. 40:55D-4; e) 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 f) a height of a principal structure which exceeds by 10 feet or 10% of 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. 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 the purpose of the zone plan and Zoning Ordinance. Any 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.
Editor's Note: See Ch. 375, Zoning.
In addition, the Zoning Board of Adjustment shall have power given by law 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.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 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-67 whenever the Board is reviewing an application for approval of a use variance pursuant to N.J.S.A. 40:55D-70d.
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 the grant of all required subsequent approvals by the Zoning Board of Adjustment, consistent with N.J.S.A. 40:55D-76.
Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of the Zoning Officer of the municipality based on or made in the enforcement of the Zoning Ordinance or Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal and eight copies with the office from whom the appeal is taken specifying the grounds of such appeal. The official from whom the appeal is taken shall immediately transmit to the Board all the papers constituting the record upon which the action appealed was taken.
A developer may file an application for development with the Board of Adjustment for action under any of its powers without prior application to an administrative officer. Eight copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than 10 days prior to the date set for hearing, the applicant shall also file all plot plans, maps or other papers required by virtue of any provision of this chapter or any rule of the Board of Adjustment. The applicant shall obtain all necessary forms from the Secretary of the Zoning Board of Adjustment. The Secretary of the Board shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board.
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 to that end have all the powers of the administrative officer from whom the appeal is taken.
An appeal to the Board of Adjustment shall stay all proceedings in the appealed matter 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, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by an order of the Superior Court upon notice of the officer from whom the appeal is taken and on due cause shown.
Whenever the Environmental Commission has prepared and submitted to the Zoning Board an index of the natural resources of the municipality, the Zoning Board shall make available to the Environmental Commission an informational copy of every application for development to the Zoning Board. Failure of the Zoning Board to make such an informational copy available to the Environmental Commission shall not invalidate any hearing or proceeding.
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 after the submission of a complete application for development to the Board pursuant to the provisions of N.J.S.A. 40:55D-72b, or within such further time as may be consented to by the applicant. Failure of the Board to render a decision within such period shall constitute a decision favorable to the applicant. In the event the developer submits separate consecutive applications, the aforesaid time period 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 to render a decision within the prescribed period shall constitute a decision favorable to the applicant.
Any variance from the items of this chapter 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 within one year from the date of entry of the judgment or determination of the Board of Adjustment, or in the case where a variance was granted in conjunction with the approval of a development application for a minor subdivision or site plan, the protection period for the variance shall run concurrently with the protection period for the respective development application, unless the applicable construction permits have been obtained or the permitted use has actually been commenced by that date; 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 court of competent jurisdiction until the termination in any manner of such appeal or proceeding.
If the Board of Adjustment lacks a quorum because any of its regular or alternate members is prohibited by N.J.S.A. 40:55D-69 from acting on a matter due to the member's personal or financial interest therein, Class IV members of the Planning Board shall be called upon to serve, for that matter only, as temporary members of the Board of Adjustment. The Class IV members of the Planning Board shall be called upon to serve in order of seniority of continuous service to the Planning Board until there are the minimum number of members necessary to constitute a quorum to act upon the matter without any personal or financial interest therein, whether direct or indirect. If a choice has to be made between Class IV members of equal seniority, the Chair of the Planning Board shall make the choice.