Township of Bernards, NJ
Somerset County
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Table of Contents
Table of Contents
A Zoning Board of Adjustment is hereby established consisting of seven residents of the Township appointed by the Mayor 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 terms for which they were appointed.
No member of the Zoning Board of Adjustment may hold any elective office or position under the municipality.
In addition, there may be not more than two alternate members of the Zoning Board of Adjustment, to be appointed by the Mayor for terms of two years from January 1 of the year of their appointment, except that the initial term of one of the two alternate members shall be for one year from the date. Such alternate members shall be designated by the Mayor as "Alternate No. 1" and "Alternate No. 2." Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member. In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote. A vote shall not be delayed in order that a regular member may vote instead of an alternate member.
The qualifications and restrictions relating to regular members are also applicable to the alternate members.
A vacancy occurring otherwise than by expiration of term shall be filled as above provided for the unexpired term only.
[Ord. #585, § 302A]
[Ord. #585, § 302B]
The Zoning Board of Adjustment shall elect a Chairman and Vice Chairman from among its regular members and shall also select a Secretary who may be either a Board member or a municipal employee.
[Ord. #585, § 302C]
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 for the Zoning Board of Adjustment Attorney, who shall be an Attorney other than the Township Attorney.
[Ord. #585, § 302D]
The Zoning Board of Adjustment may also employ or contract for and fix the compensation of such experts and 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.
[Ord. #585, § 302E]
The Zoning Board of Adjustment shall make available to the Environmental Commission for its review and comment an informational copy of every development plan submitted to the Zoning Board of Adjustment. Failure of the Zoning Board of Adjustment to make such informational copy available to the Environmental Commission shall not invalidate any hearing or proceeding.
[Ord. #585, § 302F]
The Board shall adopt such rules and regulations as may be necessary to effectuate the provisions and purposes of this chapter. The rules and regulations shall provide that the Board review, on the record, the reports and recommendations of each municipal officer or agency with respect to each development plan referred to them by the terms of this chapter.
[Ord. #585, § 302G]
Whenever the Zoning Board of Adjustment is reviewing an application for approval of a development plan and/or a conditional use in connection with a variance pursuant to Subsection 21-5.11, paragraph d of this chapter, it shall follow the same procedures required of the Planning Board by the terms of this chapter, unless otherwise specified.
[Ord. #585, § 302H]
a. 
Applications addressed to the original jurisdiction of the Zoning Board of Adjustment without prior application to the Construction Code Enforcement Official and Zoning Enforcement Officer shall be filed with the Board Secretary. Three copies of the application shall be filed after the fifteenth day of the calendar month preceding the regularly scheduled monthly meeting of the Board, but not later than the first day of the calendar month in which such meeting is to be held. At the time of filing the application, the applicant shall also file all plans, maps or other papers required by virtue of any provisions of this chapter. The applicant shall obtain all necessary forms from the Board Secretary who shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board.
[Ord. #1429, 5-29-2001, amended]
b. 
Appeals to the Zoning Board of Adjustment may be taken by any person aggrieved, or by any officer, department, Board or bureau of the municipality affected by any decision of the Construction Code Enforcement Official and Zoning Enforcement Officer made in the enforcement of this chapter or the 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 was taken, together with three copies of the notice with the Board Secretary. The notice of appeal shall specify the grounds for 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.
[Ord. #1429, 5-29-2001, amended]
c. 
An appeal to the Zoning Board of Adjustment stays 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 order of the Superior Court of New Jersey upon notice to the officer from whom the appeal is taken and on due cause shown.
[Ord. #585, § 302I]
In exercising the above mentioned power, the Zoning Board of Adjustment may 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 officer from whose decision the appeal was taken.
[Ord. #585, § 302J; Ord. #1644, 6-24-2003, amended; Ord. #1804, 8-9-2005, amended; Ord. #2241, 9-24-2013, amended]
Any variance from the terms of this chapter hereafter granted by the Zoning 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 actually been commenced on each and every structure permitted by the variance or unless such use permitted by the variance has actually been commenced within one year from the date of decision by the Zoning Board of Adjustment. If, however, a variance is granted in conjunction with simultaneous development plan approval, it shall expire at the same time as the development plan approval(s). In the event that an appeal is filed from the decision of the Zoning Board of Adjustment, the running of the period of limitation herein provided shall be suspended from the date the appeal is filed with a court of competent jurisdiction until the termination in any manner of such appeal or proceeding.
Upon written request of the applicant, the Zoning Board of Adjustment may grant an extension of a variance approval, for up to 12 additional months, but not more than one such extension shall be granted. Whenever the Zoning Board of Adjustment shall grant an extension of variance approval, and the variance approval has expired before the date on which the extension is granted, the extension shall begin on what would otherwise be the expiration date. The applicant may apply for the extension either before or after what would otherwise be the expiration date. The Zoning Board of Adjustment shall only grant such an extension if the applicant demonstrates to the reasonable satisfaction of the Board that the applicant was barred or prevented, directly or indirectly, from proceeding with the project because of delays beyond the control of the applicant, such as but not limited to delays due to unforeseen financial or health-related conditions, project design complications, and/or delays in obtaining legally required approvals from other governmental entities, provided the applicant applied promptly for and diligently pursued the other required approvals.
In the case where an application for variance relief has been approved subject to the subsequent approval of a separate development plan application, the approval of the variance shall stipulate a reasonable time period within which an application for preliminary or final approval of the development plan shall be submitted before the approval of the variance shall expire. At the request of the applicant, the Zoning Board of Adjustment may grant an extension of the previously stipulated period for submission for up to 12 additional months but not more than one such extension shall be granted.
[Ord. #585, 302K; Ord. #700, §§ 5-6]
The Zoning Board of Adjustment shall have the power to:
a. 
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 regulations of this chapter.
b. 
Hear and decide requests for interpretations of the Zoning Map or zoning regulations of this chapter, or for decisions upon other special questions as authorized by this chapter.
c. 
1. 
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 any zoning regulations of this chapter 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;
2. 
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 requirements of this chapter and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from zoning regulations of this chapter; provided however, that no variance from those departures enumerated in Paragraph d of this subsection shall be granted under this paragraph; 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 Subsection 21-4.7, paragraph f of this chapter.
[Ord. #1429, 5-29-2001, amended]
d. 
In particular cases and for special reasons, grant a variance to allow departure from zoning regulations of this 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 Section 21-12 of this chapter pertaining solely to a conditional use.
4. 
An increase in the permitted floor area ratio as defined in Section 21-3 of this chapter.
5. 
An increase in the permitted density as defined in Section 21-3 of this chapter 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. A variance under this subsection shall be granted only by affirmative vote of at least five members of the Board of Adjustment.
No variance or other relief may be granted under the terms of this subsection 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 this chapter. An application under this subsection 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 Board of Adjustment shall act.
[Ord. #585, § 302L; Ord. #700, § 7]
The Zoning Board of Adjustment shall, in addition to the powers specified in Subsection 21-5.11 of this chapter, have the power given by law to:
a. 
Direct issuance of a permit 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 issuance of a permit 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, development plan and/or conditional use approval whenever the Board is reviewing an application for approval of a variance pursuant to Subsection 21-5.11, paragraph d of this chapter; provided, however, that the exercise of this power shall be limited to that lot (or lots) for which a variance is requested, upon which a proposed variant use, structure or condition is to be situated. Whenever the Zoning Board of Adjustment shall exercise this power, it shall follow the same procedures required of the Planning Board by the terms of this chapter.
An application under this subsection 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.
[Ord. #585, § 302M]
The developer may elect to submit a separate application requesting approval of the variance and a subsequent application for any required approval of a development plan and/or conditional use. The separate approval of the variance shall be conditioned upon grant of all required subsequent approval by the Zoning Board of Adjustment, and no such subsequent approval(s) shall be granted unless such approval(s) 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 requirements of this chapter. The number of votes required to grant any such subsequent approval(s) shall be as provided in this chapter for approvals by the Planning Board.
The Zoning 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 official or agency, or a complete application is submitted requesting approval by the Board of a variance pursuant to Subsection 21-5.11, Paragraphs c or d of this chapter, of a permit pursuant to Subsection 21-5.12, Paragraphs a or b of this chapter or of a development plan and/or conditional use in which simultaneous approval of a variance pursuant to Subsection 21-5.11, Paragraph d. is requested. (See Subsection 21-5.12, Paragraph c.) In the event that the developer elects to submit separate consecutive applications for the variance and for subsequent development plan and/or conditional use approval, the one-hundred-twenty-day period shall apply only to the application for approval of the variance, and the time period for granting or denying any subsequent approval(s) shall be as provided in this chapter for approvals by the Planning Board.
Failure of the Board to render a decision within the requisite time period, or within such further time as may be consented to in writing by the applicant, shall constitute a decision favorable to the applicant.
A certificate as to the failure of the Board of Adjustment to act shall be issued by the Board Secretary upon the request of the applicant.
[Ord. #1429, 5-29-2001, amended]
The periods of time set forth herein shall be in accordance with Subsection 21-6.12, Complete Applications, which subsection shall control if inconsistent with any section herein.
[Ord. #585, § 302; Ord. #700, § 8]