[Amended 2-11-1997; 8-23-2005 by Ord. No. O-14-2005; 11-10-2008 by Ord. No. O-17-2008; 7-18-2022 by Ord. No. O-05-2022]
A.
The Municipal Land Use Board shall have the power
to:
(1)
Error or refusal. 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 a principal official based on or made
in the enforcement of the zoning provisions of this chapter.
(2)
Exceptions or interpretations. Hear and decide requests
for interpretation of the Zoning Map or the zoning provisions of this
chapter or for decisions upon other special questions upon which the
Board is authorized to pass by any zoning provisions of this chapter
or by any duly adopted Official Map.
(3)
Variance of area or yard requirements. When, by reason
of exceptional narrowness, shallowness or shape of a specific piece
of property, or by reason of exceptional topographic conditions, or
by reason of other extraordinary and exceptional situation or condition
of such a piece of property, the strict applications of any zoning
regulation of this chapter would result in peculiar and exceptional
practical difficulties or in 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 any difficulties or hardship,
including a variance for a conditional use, provided that no variance
shall be granted under this subsection to allow a structure or use
in a district restricted against such structure or use, 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 shall review a request
for a variance pursuant to N.J.S.A. 40:55D-60a and the provisions
of this chapter.
(4)
Variance of use regulations. In particular cases and
for special reasons, grant a variance to allow departure from the
zoning provisions of this chapter, including but not limited to allowing
a structure or use in a district restricted against such structure
or use, but only by affirmative vote of at least five members of the
Municipal Land Use Board.
B.
General provisions. No variance or other relief may
be granted under the terms of this section unless such variances 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 the zoning provisions of this chapter. Any application
under this section may be referred to any appropriate person or agency,
including the Planning Board, for its report, provided that such reference
shall not exceed the period of time within which the Municipal Land
Use Board shall act.
C.
Other powers. The Municipal Land Use Board shall have
such other powers as prescribed by law, including but not limited
to the following:
(1)
Direct issuance of a construction permit pursuant
to N.J.S.A. 40:55D-34 for the construction of a building or structure
within the bed of a mapped street or public drainageway, flood control
basin or public area as shown on a duly adopted Official Map of the
municipality whenever one or more parcels of land within said bed
cannot yield a reasonable return to the owner unless a construction
permit is granted. The Board may grant such relief only by affirmative
vote of a majority of the full authorized membership of the Municipal
Land Use Board, ensuring that such relief will tend to cause a minimum
change of the Official Map and will not significantly add to the cost
of opening any proposed street. The Board shall impose reasonable
requirements as a condition of granting the construction permit so
as to promote the health, morals, safety and general welfare of the
public.
(2)
Direct issuance of a construction permit pursuant
to N.J.S.A. 40:55D-36 for the construction of a building or structure
on a lot not abutting a street which is shown on a duly adopted Official
Map of the municipality or which is an existing state, county or municipal
street or highway or a street shown upon a plat approved by the Township
Planning Board or a street on a plat duly filed in the office of the
county recording officer. The Board may grant such relief only when
the enforcement of the statute requirement that a building lot abut
a street would entail practical difficulty or unnecessary hardship
or where the circumstances of the case do not require the building
or structure to abut a street. The Board shall impose requirements
or conditions that will provide adequate access for fire-fighting
equipment, ambulances and other necessary emergency vehicles for the
protection of the health and safety and that will protect any future
street layout on the Official Map or on the general circulation plan
element of the municipal Master Plan.
(3)
The Municipal Land Use Board shall have the power to grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision, site plan or conditional use approval whenever the proposed development requires approval by the Municipal Land Use Board of a variance pursuant to Subsection A(4) of this section. 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 a grant of all required subsequent approvals by the Municipal Land Use Board. 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 the zoning provisions of this chapter. The number of votes of Board members required to grant such subsequent approval shall be as otherwise provided in this chapter for the approval in question, and the special vote pursuant to Subsection A(4) of this section shall not be required.
A.
Appeals to the Municipal Land Use Board may be taken
by any interested party affected by any decision of a municipal official
of the municipality based on or made in the enforcement of the zoning
provisions of this chapter or a duly adopted Official Map. Such appeal
shall be taken within 20 days by filing a notice of appeal with the
official from whom the appeal is taken, with three copies of the notice
given to the Secretary of the Municipal Land Use Board. The notice
shall specify the grounds for the 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 from was taken.
B.
The Municipal Land Use Board 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 powers of the municipal official from whom the appeal is taken.
C.
An appeal to the Municipal Land Use Board shall stay
all proceedings in furtherance of the action in respect to which the
decision appealed from was made, unless the municipal official from
whose action the appeal is taken certifies to the Municipal Land Use
Board, 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 municipal official from whom the
appeal is taken and due cause shown.
D.
A developer may file an application for development
with the Municipal Land Use Board for action under any of its powers
without prior application to a municipal official.
E.
The Municipal Land Use Board shall act upon any appeal
or any application for development within 120 days, either from the
date the appeal is taken from the decision of the municipal official
or from the date the application is certified as a complete application
by the Township, as the case may be, or within such further time as
may be consented to by the applicant, except that, when an applicant
elects to submit separate consecutive applications for use variance
approval and site plan, subdivision or conditional use approval, the
one-hundred-twenty-day time period for action shall apply to the application
for approval of the use variance, and the time period for granting
or denying any subsequent approval shall be as otherwise provided
in this chapter.
The Municipal Land Use Board shall have the
powers listed below in addition to other powers established by law:
A.
Make, adopt and, from time to time, amend a Master
Plan for the physical development of the Township, including any areas
outside its boundaries which, in the Board's judgment, bear essential
relationship to the planning of the Township.
B.
Administer the provisions of land subdivision and
site plan review in accordance with the applicable provisions of this
chapter.
C.
Participate in the preparation and review of programs
or plans required by state or federal law or regulation.
D.
Assemble data on a continuing basis as part of a continuous
planning process.
E.
Annually, at the request of the Township Committee,
prepare a program of municipal capital improvement projects projected
over a term of six years and recommend same to the Township Committee.
F.
Consider and report to the Township Committee within
35 days after referral as to any proposed development regulation submitted
to it and also pass upon other matters specifically referred to the
Municipal Land Use Board by the Township Committee.
G.
The Municipal Land Use Board shall have such other
powers as prescribed by law, including but not limited to the power
to grant the following variances, to the same extent and subject to
the same restrictions as the Zoning Board of Adjustment, when the
Municipal Land Use Board is reviewing applications for approval of
subdivision plats, site plans or conditional uses:
(1)
Variances pursuant to § 230-73A(3) of this chapter.
(2)
Direction pursuant to § 230-73C(1) of this chapter for 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.
(3)
Direction pursuant to § 230-73C(2) of this chapter for issuance of a permit for a building or structure on a lot not abutting a street.
A.
Conflicts of interest. No regular or alternate member
of the Municipal Land Use Board shall act on any matter in which he
has, either directly or indirectly, any personal or financial interest.
Whenever any such member shall disqualify himself from acting on a
particular matter, he shall not continue to sit with the Board on
the hearing of such matter nor participate in any discussion or decision
relating thereto.
B.
Meetings.
(1)
Meetings of the Municipal Land Use Board shall be
scheduled no less than once a month, and any meeting so scheduled
shall be held as scheduled unless canceled for lack of applications
for development to process.
(2)
Special meetings may be provided for at the call of
the Chairman or on the request of any two Board members, which meetings
shall be held on notice to its members and the public in accordance
with all applicable legal requirements.
(3)
No action shall be taken at any meeting without a
quorum being present, said quorum to be the majority of the full authorized
membership of the Board.
(4)
All actions shall be taken by majority vote of the
members of the Board at the meeting except as otherwise required by
a provision of N.J.S.A. 40:55D-1 et seq. A member of the Board who
was absent for one or more of the meetings at which a hearing was
held shall be eligible to vote on a matter upon which the hearing
was conducted, notwithstanding his absence from one or more of the
meetings; provided, however, that such Board member has available
to him the transcript or recording of all of the hearing from which
he was absent and certifies in writing to the Board that he has read
such transcript or listened to such recording.
(5)
All regular meetings and all special meetings shall
be open to the public. Notice of all such meetings shall be given
in accordance with the requirements of the Open Public Meetings Law,
Laws of New Jersey 1975, c. 231 (N.J.S.A. 10:4-6 through 10:4-10).
C.
Public hearings.
(1)
The Municipal Land Use Board shall hold a hearing
on each application for development. Each Board shall make rules governing
such hearings.
(2)
Any maps and documents for which approval is sought
at a hearing shall be on file and available for public inspection
at least 10 days before the date of the hearing during normal business
hours in the office of the Administrative Officer. The applicant may
produce any documents, records or testimony at the hearing to substantiate
or clarify or supplement the previously filed maps and documents.
(3)
The officer presiding at the hearings or such person
as he may designate shall have the power to administer oaths and issue
subpoenas to compel the attendance of witnesses and the production
of relevant evidence, including witnesses and documents presented
by the parties, and the provisions of the County and Municipal Investigations
Law, P.L. 1953, c. 38 (N.J.S.A. 2A:67A-1 et seq.), shall apply.
(4)
The testimony of all witnesses relating to an application
for development shall be taken under oath or affirmation by the presiding
officer, and the right of cross-examination shall be permitted to
all interested parties through their attorneys, if represented, or
directly, if not represented, subject to the discretion of the presiding
officer and reasonable limitations as to time and number of witnesses.
D.
Public notice of a hearing.
(1)
Public notice of a hearing shall be given for the
following applications for development:
(a)
Any request for a variance.
(b)
Any request for conditional use approval.
(c)
Any request for issuance of a permit to build within the bed of a mapped street or public drainageway or on a lot not abutting a street. [See § 230-73C(1) and (2).]
(d)
Any request for site plan and/or subdivision
approval involving one or more of the aforesaid elements.
(e)
Any request for preliminary approval of a major
subdivision or site plan.
(f)
Any request for approval of a planned development.
(2)
The Secretary of the Municipal Land Use Board shall
notify the applicant at least two weeks prior to the public hearing
at which the application will be discussed. Notice of a hearing requiring
public notice shall be given by the applicant at least 10 days prior
to the date of the hearing, in the following manner:
(a)
By publication in the official newspaper of
the Township, if there is one, or in a newspaper of general circulation
in the Township in the absence of an official newspaper.
(b)
To all owners of real property located in the
state and within 200 feet in all directions of the property which
is the subject of the hearing, as such owners are shown in the current
tax duplicate. Notice shall be given by serving a copy on the property
owner, as shown on the current tax duplicate, or his agent in charge
of the property or by mailing a copy thereof to the property owner
at his address as shown on the current tax duplicate. It is not required
that a return receipt is obtained; notice is deemed complete upon
mailing. Moreover, the above requirements shall be deemed satisfied
where condominiums or horizontal property regimes are within 200 feet
of the applicant's property by making service in the following manner:
[1]
If the applicant's property abuts a condominium
and the owner of any unit is within 200 feet of the applicant's property
and said unit has a unit above or below it, by giving notice to the
condominium association.
[2]
If the applicant's property abuts a horizontal
property regime and an apartment of the co-owner is within 200 feet
of the applicant's property and such apartment has an apartment above
or below it, by giving notice to the horizontal property regime.
[3]
If the applicant is the owner of a condominium
unit or the co-owner of an apartment, notice shall be given to all
other unit owners or apartment co-owners within 200 feet of the unit
or apartment owned or co-owned by the applicant.
(c)
Notice to a partnership owner may be made by
service to any partner; notice to a corporate owner may be made by
service upon its president, vice president, secretary or other person
authorized by appointment or by law to accept service on behalf of
the corporation. Notice to a condominium association, horizontal property
regime, community trust or homeowner's association, because of its
ownership of common elements or areas located within 200 feet of the
property which is the subject of the hearing, may be made in the same
manner as to a corporation without further notice to unit owners,
co-owners or homeowners on account of such common elements or areas.
(d)
To the Township Clerk of any adjoining municipality
or municipalities when the property involved is located within 200
feet of said adjoining municipality or municipalities. Notice shall
be given by personal service or certified mail.
(e)
To the Gloucester County Planning Board when
the application for development involves property adjacent to an existing
county road or proposed road as shown on the County Official Map or
County Master Plan, adjoining other County land or situated within
200 feet of a municipal boundary. Notice shall be given by personal
service or certified mail.
(f)
To the Commissioner of Transportation of the
State of New Jersey when the property abuts a state highway. Notice
shall be given by personal service or certified mail.
(g)
To the Director of the Division of State and
Regional Planning in the Department of Community Affairs when the
hearing involves an application for the development of property which
exceeds 150 acres or 500 dwelling units, in which case the notice
shall include a copy of any maps or documents required to be filed
with the Township.
(3)
Upon the written request of an applicant, the Administrative Officer shall, within seven days, make and certify a list from current tax duplicates of names and addresses of owners within the Township to whom the applicant is required to give notice. The applicant shall be charged a flat fee of $10 for said list and shall be entitled to rely upon the information contained in such list, and failure to give notice to any lot owner not on the list shall not invalidate any hearing or proceeding. Additionally, the applicant shall be responsible for giving proper notice to all property owners pursuant to Subsection D(2)(b) above who do not reside within the Township.
(4)
The applicant shall file an affidavit of proof of
service with the Municipal Land Use Board.
(5)
The notice shall state the date, time and place of
the hearing and the nature of the matters to be discussed and an identification
of the property proposed for development by street address, if any,
or by reference to lot and block numbers as shown on the current tax
duplicate in the Township Tax Assessor's office and the location and
times at which any maps or documents for which approval is sought
are available for inspection.
E.
Records.
(1)
Minutes of every regular or special meeting shall be kept and shall include the names and addresses of the persons appearing and addressing the Municipal Land Use Board and of any persons appearing by attorney, the action taken by the Municipal Land Use Board, the findings, if any, made by it and the reasons therefor. The minutes shall thereafter be made available for public inspection during the normal business hours at the office of the Administrative Officer. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes. Such interested party shall be charged a reasonable fee for the reproduction of the minutes, as indicated in § 230-87 of this chapter.
(2)
A verbatim recording shall be made of every hearing. The recording of the proceedings shall be made either by stenographic, mechanical or electrical means. The municipality shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense, provided that the charge for a transcript shall not exceed the maximum amount permitted in N.J.S.A. 2A:11-15 and as indicated in § 230-87 of this chapter. Each transcript shall be certified in writing by the transcriber to be accurate.
F.
Decisions.
(1)
Each decision on any application for development shall
be reduced to writing by the Board and shall include findings of facts
and conclusions based thereon.
(2)
The Board may provide such written decision and findings
and conclusions either on the date of the meeting at which the Board
grants or denies approval or, if the meeting at which such action
is taken occurs within the final 45 days of the applicable time period
for rendering a decision on the application for development, within
45 days of such meeting by the adoption of a resolution of memorialization
setting forth the decision and findings and conclusions of the Board.
(3)
Failure of a motion to approve an application for
development to receive the number of votes required for approval shall
be deemed an action denying the application. An action resulting from
the failure of a motion to approve the application shall be memorialized
by resolution as provided above, notwithstanding the time at which
such action occurs within the applicable time period for rendering
a decision on the application.
(4)
The adoption of a resolution of memorialization pursuant
to this subsection shall not be construed to alter the applicable
time period for rendering a decision on the application for development.
Such resolution shall be adopted by a vote of the majority of the
Board members who voted for the action previously taken, and no other
member shall vote thereon. The vote of such a resolution shall be
deemed to be a memorialization of an action taken by the Board and
not to be an action of the Board, except that failure to adopt such
a resolution within the forty-five-day period shall result in the
approval of the application for development, notwithstanding any prior
action taken thereon.
All appeals of decisions made by the Municipal
Land Use Board for the Township of Mantua shall be taken directly
to the Superior Court of New Jersey and not to the Mantua Township
Committee.
Any decision of the Municipal Land Use Board
when acting upon an application for development and any decision of
the Township Committee when acting upon an appeal shall be given notice
in the following manner:
A.
A copy of the decision shall be mailed by the appropriate
Township authority within 10 days of the date of decision to the applicant
or appellant or, if represented, then to his attorney, without separate
charge. A copy of the decision shall also be mailed within 10 days
to any interested party who has requested it and who has paid the
fee prescribed by the Township authority for such service.
B.
A brief notice of every final decision shall be published
in the official newspaper of the Township. Such publications shall
be arranged by the Secretary of the Municipal Land Use Board or the
Township Clerk, as the case may be, without separate charge to the
applicant. The notice shall be sent to the official newspaper for
publication within 10 days of the date of any such decision.
C.
A copy of the decision shall also be filed in the office of the Township Clerk, who shall make a copy of such filed decision available to any interested party upon payment of a fee calculated in the same manner as those established for copies of other public documents in the Township, as indicated in § 230-87 of this chapter.[1]
