It is the intent of this article to set forth the procedures for the various appeals to the Planning Board, Zoning Board of Adjustment and the Village Council as permitted by this chapter. In addition to the procedures set forth in the following sections for each type of appeal, the procedures set forth for review of site plan and subdivision applications in Article VII of this chapter shall apply, unless the context clearly indicates otherwise or unless contrary to law, including but not necessarily limited to the following:
Appeals to the Zoning Board of Adjustment may be taken by any interested party when it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by the Zoning Officer or Construction Official of the Village based on or made in the enforcement of the zoning regulations, Article X of this chapter. The following provisions shall apply to such appeals:
A.
Appeals must be taken within 20 days of the decision
of the Zoning Officer or Construction Official.
B.
A notice of appeal shall be filed with the Zoning
Officer or Construction Official, specifying the grounds of the appeal.
The officer from whom the appeal is taken shall immediately transmit
to the Board all the papers constituting the record upon which the
action appealed from was taken.
C.
Fees required by this chapter shall be submitted with
the notice of appeal, as well as proof of payment of taxes and assessments.
D.
An appeal to the Zoning Board of Adjustment shall
stay all proceedings in furtherance of the action in respect to which
the decision appealed from was made unless the officer from whose
action the appeal is taken certifies to the Zoning 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 to the officer from whom the appeal is taken and on due cause
shown.
E.
A public hearing shall be held in accordance with
the provisions for hearings in this chapter.
F.
The appellant shall give public notice of the hearing in the manner specified for development applications in this chapter, provided that the parties entitled to notice shall be as specified in § 190-12B(1) of this chapter. If the appeal is made by an interested party other than the owner of the property which was the subject of the decision by the Zoning Officer or Construction Official, notice shall also be sent to said property owner. Affidavits of proof of service of notice shall be submitted at least two business days prior to the hearing.
G.
The Zoning 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 shall
have all the powers of the officer from whom the appeal is taken.
H.
The Zoning Board of Adjustment shall render a decision
not later than 120 days after the date the appeal is taken from the
Zoning Officer or Construction Official, or within such further time
as may be consented to by the applicant.
I.
The Zoning Board of Adjustment may refer an application
pursuant to this section 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 Board shall act.
The Zoning Board of Adjustment shall hear and decide requests for interpretation of the Zoning Map or zoning regulations, Article X of this chapter, or for decisions upon other special questions upon which the Board is specifically authorized to pass by this chapter. The following provisions shall apply to such requests:
A.
An application form shall be completed and shall be
accompanied by a specific written request which outlines that part
of the Zoning Map, zoning regulations or Official Map for which an
interpretation is sought or outlines the special question that the
Board is asked to consider.
B.
Twelve copies of the application form and all accompanying
documentation shall be submitted to the Secretary of the Board.
C.
Fees required by this chapter shall be submitted with
the request, as well as proof of payment of taxes and assessments.
D.
A public hearing shall be held in accordance with
the provisions for hearings in this chapter.
E.
The appellant shall publish notice of the hearing on the request in the official newspaper of the Village, if there is one, or in a newspaper of general circulation in the Village. If the request for interpretation or special question concerns a specific property, the appellant shall also give public notice of the hearing in the manner specified for development applications in this chapter, provided that the parties entitled to notice shall be as specified in § 190-12B(1) of this chapter. If the request is made by a person other than the owner of the specific property which is the concern of the interpretation or special question, notice shall also be sent to said property owner. Affidavits of proof of service of notice shall be submitted at least two business days prior to the hearing.
F.
The Zoning Board of Adjustment may refer an application
pursuant to this section to any appropriate person or agency, including
the Planning Board, for its report.
Appeals to the Zoning Board of Adjustment may
be taken from a refusal by the Construction Official to issue a permit
for any building or structure in the bed of any street or public drainage
way, flood control basin or public area reserved on the Official Map;
provided that if the proposed development requires approval by the
Planning Board of a subdivision, site plan or conditional use, the
Planning Board shall also hear any appeal pursuant to this section.
The following provisions shall apply to such appeals or applications:
A.
A developer may file an application for development
with the appropriate board under this section without prior application
to the Construction Official. In addition, the developer may elect
to submit a separate application requesting direction for the issuance
of a permit and a subsequent application for any required approval
of a subdivision, site plan or conditional use. The separate direction
for the issuance of a permit shall be conditioned upon grant of all
required subsequent approvals by the same Board that directed the
issuance of a permit.
B.
Any appeal or application pursuant to this section
shall be required to submit 12 copies, if the Zoning Board of Adjustment
has jurisdiction, or 20 copies, if the Planning Board has jurisdiction,
of a map showing the property in question and the location of the
proposed building and/or structure in relation to the bed of the mapped
street or public drainage way, flood control basin or public area
reserved on the Official Map. In addition, fees required by this chapter
shall be submitted with the notice of appeal, as well as proof of
payment of taxes and assessments.
C.
An appeal pursuant to this section shall stay all proceedings in the same manner as specified in § 190-29D.
D.
A public hearing shall be held in accordance with
the provisions for hearings in this chapter.
E.
The appellant shall give public notice of the hearing in the manner specified for development applications in this chapter; provided that the parties entitled to notice shall be as specified in § 190-12B(1) of this chapter. Affidavits of proof of service of notice shall be submitted at least two business days prior to the hearing.
F.
The Zoning Board of Adjustment may reverse or affirm,
wholly or in part, or may modify the refusal of the Construction Official
and direct the issuance of a permit subject to the following provisions:
(1)
There must be a showing by the appellant, and the
Board must find, that the subject property cannot yield a reasonable
return to the owner unless a building permit is granted.
(2)
Any decision of the Board to direct the issuance of
a permit pursuant to this section shall only be by an affirmative
vote of a majority of the full authorized membership of the Board.
(3)
Any decision of the Board to direct the issuance of
a permit pursuant to this section shall be in accordance with terms
and conditions which will as little as practicable increase the cost
of opening such street, or tend to cause a minimum change of the Official
Map, and the Board shall impose reasonable requirements as a condition
of granting the permit so as to promote the health, morals, safety
and general welfare of the public.
G.
The Zoning Board of Adjustment shall render a decision
not later than 120 days after the date an appeal is taken from the
Construction Official or a development application is certified to
be complete pursuant to this chapter, or within such further time
as may be consented to by the applicant.
H.
The Zoning Board of Adjustment may refer an application
pursuant to this section 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 Board shall act.
Appeals to the Zoning Board of Adjustment may
be taken from a refusal by the Construction Official to issue a permit
for any building or structure on a lot which does not abut a street
giving access to such building or structure, provided that if the
proposed development requires approval by the Planning Board of a
subdivision, site plan or conditional use, the Planning Board shall
also hear any appeal pursuant to this section. The following provisions
shall apply to such appeals or applications:
A.
A developer may file an application for development
with the appropriate board under this section without prior application
to the Construction Official. In addition, the developer may elect
to submit a separate application requesting direction for the issuance
of a permit and a subsequent application for any required approval
of a subdivision, site plan or conditional use. The separate direction
for the issuance of a permit shall be conditioned upon grant of all
required subsequent approvals by the same Board that directed the
issuance of a permit.
B.
Any appeal or application pursuant to this section
shall be required to submit 12 copies, if the Zoning Board of Adjustment
has jurisdiction, or 20 copies, if the Planning Board has jurisdiction,
of a map showing the property in question and the manner by which
access will be provided to the building and/or structure, including
the location of the nearest street from which access may be obtained.
In addition, fees required by this chapter shall be submitted with
the notice of appeal, as well as proof of payment of taxes and assessments.
C.
An appeal pursuant to this section shall stay all proceedings in the same manner as specified in § 190-29D.
D.
A public hearing shall be held in accordance with
the provisions for hearings in this chapter.
E.
The appellant shall give public notice of the hearing in the manner specified for development applications in this chapter, provided that the parties entitled to notice shall be as specified in § 190-12B(1) of this chapter. Affidavits of proof of service of notice shall be submitted at least two business days prior to the hearing.
F.
The Zoning Board of Adjustment may reverse or affirm,
wholly or in part, or may modify the refusal of the Construction Official
and direct the issuance of a permit subject to the following provisions:
(1)
There must be a showing by the appellant, and the
Board must find, that the refusal to issue a permit would entail practical
difficulty or hardship, or that the circumstances of the case do not
require the building or structure to be related to a street.
(2)
Any decision of the Board to direct the issuance of
a permit pursuant to this section shall be in accordance with terms
and conditions which will provide adequate access for fire fighting
equipment, ambulances and other emergency vehicles necessary for the
protection of health and safety and that will protect any future street
layout shown on the Official Map or on the circulation plan element
of the Village Master Plan.
G.
The Zoning Board of Adjustment shall render a decision
not later than 120 days after the date an appeal is taken from the
Construction Official or a development application is certified to
be complete pursuant to this chapter, or within such further time
as may be consented to by the applicant.
H.
The Zoning Board of Adjustment may refer an application
pursuant to this section 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 Board shall act.
Appeals to the Zoning Board of Adjustment may be taken for relief from the zoning regulations, Article X of this chapter. Notwithstanding the above, if the proposed development requires approval by the Planning Board of a subdivision, site plan or conditional use, the Planning Board shall also hear any such variance appeals, except for "D" variances. The following provisions shall apply to "C" variance appeals or applications:
A.
A developer may file an application for development
with the appropriate board under this section without prior application
to the Zoning Officer or Construction Official.
B.
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 same Board that approved
the variance.
C.
Any appeal or application pursuant to this section shall be required to submit the information required by the § 190-75.
D.
An appeal pursuant to this section shall stay all proceedings in the same manner as specified in § 190-29D.
E.
A public hearing shall be held in accordance with
the provisions for hearings in this chapter.
F.
The appellant shall give public notice of the hearing in the manner specified for development applications in this chapter, provided that the parties entitled to notice shall be as specified in § 190-12B(1) of this chapter. Affidavits of proof of service of notice shall be submitted at least two business days prior to the hearing.
G.
The Zoning Board of Adjustment may grant a "C" variance
to allow departure from the zoning regulations if there is a showing
by the appellant, and the Board finds that:
(1)
The strict application of the specific zoning regulation
would result in peculiar and exceptional practical difficulties to
or exceptional and undue hardship upon the developer of the subject
property due to exceptional narrowness, shallowness or shape of the
subject property, exceptional topographic conditions or physical features
uniquely affecting the subject property or an extraordinary and exceptional
situation uniquely affecting the subject property or the structures
lawfully existing thereon; or that the purposes of the Municipal Land
Use Law[1] would be advanced by the requested variance, and the benefits
of the variance would substantially outweigh any detriment;
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
(2)
The variance can be granted without substantial detriment
to the public good; and
(3)
The grant of the variance will not substantially impair
the intent of the zone plan and zoning regulations.
H.
The Zoning Board of Adjustment shall render a decision
not later than 120 days after the date an appeal is taken from the
Zoning Officer or Construction Official or a development application
is certified to be complete pursuant to this chapter, or within such
further time as may be consented to by the applicant.
I.
The Zoning Board of Adjustment may refer an application
pursuant to this section 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 Board shall act.
In particular cases, appeals to the Zoning Board
of Adjustment may be taken for "D" variance requests. Whenever the
proposed development involves a "D" variance, the Zoning Board of
Adjustment shall also hear any subdivision, site plan, conditional
use application and any other variance applications required for the
development. The following provisions shall apply to "D" variance
appeals or applications:
A.
A developer may file an application for a "D" variance
with the Zoning Board of Adjustment without prior application to the
Zoning Officer or Construction Official.
B.
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.
C.
Any appeal or application pursuant to this section shall be required to submit the information required by § 190-75.
D.
An appeal pursuant to this section shall stay all proceedings in the same manner as specified in § 190-29D.
E.
A public hearing shall be held in accordance with
the provisions for hearings in this chapter.
F.
The appellant shall give public notice of the hearing in the manner specified for development applications in this chapter; provided that the parties entitled to notice shall be as specified in § 190-12B(1) of this chapter. Affidavits of proof of service of notice shall be submitted at least two business days prior to the hearing.
G.
The Zoning Board of Adjustment may grant a "D" variance
to allow departure from the zoning regulations subject to the following
provisions:
H.
The Zoning Board of Adjustment shall render a decision
not later than 120 days after the date an appeal is taken from the
Zoning Officer or Construction Official or a development application
is certified to be complete pursuant to this chapter, or within such
further time as may be consented to by the applicant.
I.
The Zoning Board of Adjustment may refer an application
pursuant to this section 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 Board shall act.
Any interested party may appeal to the Village
Council any final decision of the Zoning Board of Adjustment approving
an application for development involving a "D" variance. The following
provisions shall apply to such appeals:
A.
Appeals to the Village Council shall be made within
10 days of the date of publication of the final decision of the Zoning
Board of Adjustment.
B.
The appeal to the Village Council shall be made by
serving the Village Clerk in person or by certified mail with a notice
of appeal specifying the grounds thereof, the name and address of
the appellant and the name and address of his attorney, if represented.
C.
An appeal pursuant to this section shall stay all proceedings in the same manner as specified in § 190-29D.
D.
The appellant shall, within five days of service of the notice of the appeal, arrange for a transcript pursuant to § 190-18 for use by the Village Council and pay a deposit as specified in Article V of this chapter or within 35 days of service of the notice of appeal submit a transcript as otherwise arranged to the Village Clerk; otherwise, the appeal may be dismissed for failure to prosecute.
E.
Notice of the meeting to review the record below shall be given by the Village Council by personal service or certified mail to the appellant, or to his attorney if represented, to those entitled to notice of a decision pursuant to § 190-20A and to the Zoning Board of Adjustment at least 10 days prior to the date of the meeting.
F.
The appeal shall be decided by the Village Council only upon the record established before the Zoning Board of Adjustment. The parties may submit oral and written argument on the record at such meeting, and the Village Council shall provide for verbatim recording and transcripts of such meeting pursuant to § 190-18.
G.
The Village Council may reverse, remand or affirm
with or without the imposition of conditions the final decision of
the Zoning Board of Adjustment granting a "D" variance.
H.
The affirmative vote of a majority of the full authorized
membership of the Village Council shall be necessary to reverse or
remand to the Zoning Board of Adjustment or to impose conditions on
or alter conditions to any final action of the Zoning Board of Adjustment;
otherwise the final action of the Zoning Board of Adjustment shall
be deemed to be affirmed. A tie vote of the Village Council shall
constitute affirmance of the decision of the Zoning Board of Adjustment.
I.
The Village Council shall conclude a review of the record below not later than 95 days from the date of publication of notice of the decision below pursuant to § 190-20C, unless the applicant consents in writing to an extension of such period.
J.
Failure of the Village Council to hold a hearing and conclude a review of the record below and to render a decision within the period specified in Subsection I above shall constitute a decision affirming the action of the Zoning Board of Adjustment.
K.
The Village Council shall mail a copy of the decision to the appellant, or if represented then to his attorney, without separate charge, and for a fee as provided by Article V of this chapter to any interested party who has requested it, not later than 10 days after the date of the decision.
L.
A brief notice of the decision shall be published in the official newspaper of the Village, if there is one, or in a newspaper of general circulation in the Village. Such publication shall be arranged by the Village Clerk, provided that nothing herein shall be construed as preventing the applicant from arranging such publication if he so desires. The Village Council shall require a fee for the publication as specified in Article V of this chapter.
M.
Nothing in this section shall be construed to restrict
the right of any party to obtain a review by any court of competent
jurisdiction according to law. The period of time in which an appeal
to a court of competent jurisdiction may be made shall run from the
first publication of the decision of the Village Council, whether
arranged by the Council or the applicant.
[Amended 4-9-2008 by Ord. No. 3109]
Variances granted by the Planning Board or the Zoning Board of Adjustment shall expire unless the development associated with the variance is promptly completed; provided, however, that no variance which was a prerequisite for subdivision approval shall expire if the plat or deed for the subdivision has been filed with the County Recording Officer as required by law. In addition, the tolling provisions of § 190-52 shall apply to variances. All other variances shall expire in accordance with the following provisions:
A.
Variance approvals not subject to site plan, subdivision
or conditional use approval. In the case of a variance approval from
the Zoning Board of Adjustment which does not also require subdivision,
site plan or conditional use approvals from the Board, the following
shall apply:
(1)
The required building permits, or zoning and other permits, when no building permits are required, must be obtained within one year of the date of the adoption of a resolution or memorializing resolution of approval or within six months of the date that all conditions precedent of approval, if any, have been satisfied, whichever occurs later, or the variance will expire. Conditions precedent to approval shall be complied with within the time periods specified in § 190-49.
(2)
The construction of the improvements that were the
subject of the variance(s) must be initiated prior to expiration of
the building and/or zoning permit or the variance will expire.
(3)
The construction of the improvements that were the subject of the variance(s) must be completed within the time frames specified in § 190-97E, or the violator will be subject to § 190-97E(5) and (6).
B.
Variance approvals subject to or part of site plan
or conditional use approval. In the case of a variance approval from
the Planning Board or the Zoning Board of Adjustment which also requires
site plan or conditional use approvals from the Board, the following
shall apply:
(1)
The required building permits, or zoning and other permits, when no building permits are required, must be obtained prior to the date of expiration of the period of statutory protection against changes in the zoning regulations, including any extensions thereof, which periods are provided in Article VII of this chapter, or the variance will expire.
(2)
The construction of the improvements that were the subject of the variance(s) must be initiated prior to expiration of the building permit pursuant to N.J.A.C. 5:23-1 et seq. or, if no building permit is required, prior to the expiration of the zoning permit pursuant to § 190-97B, or the variance will expire.
(3)
The construction of the improvements that were the subject of the variance(s) must be completed within the time frames specified in § 190-97E, or the violator will be subject to the provisions of § 190-97E(5) and (6).
C.
Bifurcated variance applications. In the case of a
bifurcated variance approval from the Planning Board or the Zoning
Board of Adjustment which requires subsequent subdivision, site plan
or conditional use approvals from the Board, the following shall apply:
(1)
Such subsequent applications shall be filed within six months of the date of adoption of the resolution or memorializing resolution approving the original variance or within six months of the date that all conditions precedent of the approval for the original variance, if any, have been satisfied, whichever occurs later, or the variance will expire. Conditions precedent to approval shall be complied with within the time periods specified in § 190-49.
(2)
The developer shall obtain all required site plan
and/or subdivision approvals, as applicable, within one year of the
original filing of the application therefor, or the variance will
expire. For purposes of administering this provision, "approvals"
shall be construed to mean the vote by the Planning Board or Board
of Adjustment, as applicable, in favor of the application.
D.
Extensions. The Planning Board or the Zoning Board of Adjustment, as applicable, may, upon good cause shown in writing, extend the expiration dates for variances specified in Subsections A, B and C above. The following procedures shall apply:
(1)
Variances granted with site plan or subdivision. In considering requests for extensions of variances that were granted as part of an application for site plan or subdivision approval, the Planning Board or Board of Adjustment, as applicable, shall follow the applicable procedures and requirements for extensions of the period of approval and/or period of protection from changes in zoning regulations set forth in Article VII of this chapter.
(2)
Variances granted without site plan or subdivision.
In considering requests for extensions of bifurcated variances or
variances that were not granted as part of an application for site
plan or subdivision approval, the following shall apply:
(a)
The developer may apply for an extension either
before or after what would otherwise be the expiration date. Whenever
the Board grants a variance extension pursuant to this subsection
and the variance has expired before the date on which the extension
is granted, the extension shall begin on what would otherwise be the
expiration date.
(b)
The Planning Board or Board of Adjustment, as
applicable, shall hold a public hearing on the extension request,
with public notice to be served the same as in the original variance
application.
(c)
The developer may apply for and the Board may
grant extensions of variances for a time period not to exceed one
year for each extension. A new application and hearing shall be required
for each subsequent request for a variance extension.
(d)
If the developer proves to the reasonable satisfaction
of the Board that the developer was barred or prevented, directly
or indirectly, from proceeding with the development because of delays
in obtaining legally required approvals from other governmental entities
and that the developer applied promptly for and diligently pursued
the approvals, the reviewing board shall grant the requested extension.
(e)
If the circumstances in Subsection D(2)(d) above do not apply, the reviewing board shall have the discretion to grant or deny variance extensions. In considering extension requests under these circumstances, the reviewing board shall balance the public interest at stake against the private interest in requesting the extension.
