A.
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 Branchville 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.
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
term shall be filled for the unexpired term only.
D.
There shall also be two alternate members, who shall
be designated at the time of appointment as "Alternate No. 1" and
"Alternate No. 2." Of the alternates first appointed, Alternate No.
1 shall be appointed for a two-year term and Alternate No. 2 shall
be appointed for a one-year term.
[Added 11-18-1981 by Ord. No. 81-1P]
E.
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.
[Added 11-18-1981 by Ord. No. 81-1P]
[Added 1-15-1992 by Ord. No. 1-1992]
The Zoning Board of Adjustment of the Borough
of Branchville shall henceforth be known as the "Planning Board/Zoning
Board of Adjustment of the Borough of Branchville." The Planning Board/Zoning
Board of Adjustment is hereby empowered to exercise to the same extent
and subject to the same restrictions all powers of a Zoning Board
of Adjustment pursuant to N.J.S.A. 40:55D-25. In each and every instance
where the term "Planning Board" or "Zoning Board of Adjustment" appears
in the Branchville Borough Code, those terms shall be construed to
refer to the Planning Board/Zoning Board of Adjustment of the Borough.
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 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 the Municipal 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 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.
A.
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.
B.
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, 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.
C.
The Board may, in appropriate cases and subject to
appropriate conditions and safeguards, grant variances from the terms
of this chapter 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
this 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
said P.L. 1975, c. 291, 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 properly be filed with the Board for its decision
thereon.
D.
The Planning Board/Zoning Board of Adjustment shall
exercise, to the same extent and subject to the same restrictions,
all the powers of a Zoning Board of Adjustment, but the Class I and
the Class III members shall not participate in the consideration of
applications for development which involve relief pursuant to N.J.S.A.
40:55D-70d.
[Added 1-15-1992 by Ord. No. 1-92]
[Amended 7-16-1980 by Ord. No. 5-80; 11-18-1981 by Ord. No.
81-1P]
A.
Appellant; time. Appeals to the Board of Adjustment
may be taken by any person aggrieved or by an officer, department,
board or bureau of the Borough affected by any decision of the administrative
officer. 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 five copies of the notice
with the Secretary of the Board of Adjustment. The notice of appeal
shall specify the grounds for 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.
B.
At least 14 certified black-on-white prints of the variance map, together with 14 completed application forms for variance or appeal, shall be submitted, signed by the owner, or the applicant together with the acknowledged consent of the owner, to the Borough Clerk 14 days prior to the Board Meeting at which time a hearing will be held. At the time of filing, a fee as set forth in this chapter shall be paid to the Municipal Clerk. The Municipal Clerk shall immediately notify the Secretary of the Zoning Board upon receipt of an application. Additional fees may be due if required under the provisions of § 25-42 for professional review and expert witness fees.
[Amended 12-7-1988 by Ord. No. 7-88]
C.
Stays. An appeal stays 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, 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 otherwise than by a restraining
order which may be granted by the Board of Adjustment or by the Superior
Court of New Jersey on application upon notice to the officer from
whom the appeal is taken and on due cause shown.
In exercising the above-mentioned power, the
Board of Adjustment may, in conformity with the provisions of P.L.
1975, c. 291,[1] 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 order, 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.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
Any variance from the terms 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 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 nine months from the date of entry
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.
A.
The Board of Adjustment shall have such powers as
are granted by law to:
(1)
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 the Zoning Ordinance.
(2)
Hear and decide requests for interpretation of the
Zoning Map or Zoning Ordinance or for decisions on other special questions
upon which such Board is authorized by the Zoning Ordinance to pass.
(3)
Hardship variances; exceptional conditions.
[Amended 11-18-1981 by Ord. No. 81-1P; 12-19-1984 by Ord. No.
5-84]
(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 the Zoning Chapter[1] 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 the 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 this chapter would
be advanced by a deviation from the Zoning Ordinance requirements
and the benefits of the deviation would substantially outweigh any
detriment, grant a variance to allow departure from such regulations
of the Zoning Chapter; provided, however that no variance from those
departures enumerated in N.J.S.A. 40:55D-70(d) 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 N.J.S.A.
40:55D-60(a) of the Municipal Land Use Law.
(4)
Variances for special reasons.
[Amended 12-19-1984 by Ord. No. 5-84]
(a)
In particular cases and for special reasons,
grant a variance to allow departure from regulations set forth in
the Zoning 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 specification or standard pursuant
to N.J.S.A. 40:55D-67 pertaining solely to a conditional use.
[4]
An increase in the permitted floor area ratio
as defined in N.J.S.A. 40:55D-4.
[5]
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 or undersized lot or lots resulting from a minor subdivision, in which event applications would be made pursuant to Subsection A(3) above.
(b)
A variance under this subsection shall be granted
only by affirmative vote of at least five members of the Board.
B.
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
Zoning Chapter. In respect of any airport hazard areas delineated
under the Air Safety and Hazardous Zoning Act of 1983, N.J.S.A. 6:1-80
et seq., no variance or other relief may be granted under the terms
of this section permitting the creation or establishment of a nonconforming
use which would be prohibited under the standards promulgated pursuant
to that Act, except upon issuance of a permit by the Commissioner
of Transportation. An application under this section may be referred
to any appropriate person or agency other than 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 Zoning Board of Adjustment shall, in addition to the powers specified in § 25-23 of this Article, have power given by law to:
A.
Direct the 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.
B.
Direct the issuance of a permit, pursuant to N.J.S.A.
40:55D-36, for a building or structure not related to a street.
C.
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 proposed development
requires approval by the Board of Adjustment of a variance pursuant
to N.J.S.A. 40:55D-70(d). The developer may elect to submit a separate
application requesting the approval of a variance and a subsequent
application for any required approval of a subdivision, site plan
or conditional use when permitted by ordinance. The separate approval
of a variance shall be conditioned upon the granting of all required
subsequent approvals by the Board of Adjustment. No such subsequent
approvals 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 Ordinance.[1] The number of votes of Board members required to grant
any such subsequent approvals shall be as otherwise provided in this
chapter for the approval in question, and the special vote pursuant
to the aforesaid N.J.S.A. 40:55D-70(d) shall not be required.
[Amended 7-16-1980 by Ord. No. 5-80; 11-18-1981 by Ord. No.
81-1P]
[Amended 11-18-1981 by Ord. No. 81-1P]
A.
The Board of Adjustment shall render its decision
not later than 120 days after the date:
B.
Failure of the Board to render a decision within such
120-day period or within such further time as may be consented to
by the applicant shall constitute a decision favorable to the applicant.
C.
In the event that the developer elects to submit separate
consecutive applications for a use variance and then site plan approval,
subdivision approval or conditional use approval, respectively, the
120-day provision shall apply to the application for approval of the
variance; but the period for granting or denying any subsequent approval
shall be as otherwise provided in this chapter.
