Barnegat City Zoning Code
ARTICLE XI
Board of Adjustment
§ 55-230 ESTABLISHMENT.
There is hereby established, pursuant to the Municipal Land Use Law, in the Township of Barnegat a Board of Adjustment consisting of seven (7) residents of the Township appointed by the Mayor with the advice of the Committee.
§ 55-231 ALTERNATES.
[Amended 2-22-05 by Ord. No. 2005-09]
The Mayor, with the advice of the Township Committee, may appoint four (4) alternates to the Board of Adjustment for the terms of two (2) years. Such alternate members shall be designated by the Chairman of the Board as "Alternate No. 1"; "Alternate No. 2"; "Alternate No. 3"; and "Alternate No. 4". The terms of the alternate members shall serve in rotation during the absence or disqualification of any regular member or members. The term of Alternate No. 1 shall run concurrently with the term of Alternate No. 3. The term of Alternate No. 2 shall run concurrently with the term of Alternate No. 4. In the event that any alternate members of the Zoning Board of Adjustment need to cast a vote on a particular matter, the votes shall be cast in priority beginning with Alternate No. 1 through Alternate No. 4.
§ 55-232 TERMS.
A.
The terms of the members shall be four (4) years commencing 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 (4) years. Thereafter, the term of each member shall be for four (4) years. Nothing in this section shall, however, be construed to affect the terms of any present members of the Board of Adjustment, all of whom shall continue in office until the completion of the terms for which they were appointed.
B.
No member of the Board of Adjustment may hold any elective office or position under the municipality.
§ 55-233 VACANCIES.
A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
§ 55-234 ORGANIZATION.
The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary, who may or may not be either a Board member or municipal employee.
§ 55-235 ATTORNEY.
There may be an office of Attorney to the Board of Adjustment. The Attorney to the Board of Adjustment shall be an attorney other than the Municipal Attorney and whose term of office shall be one (1) year commencing January 1. Appointment to this office made after January 1 shall be limited to the calendar year. The Board shall not authorize expenditures for such services which exceed, exclusive of gifts or grants, the amount appropriated by the governing body for such services.
§ 55-236 EXPERTS AND STAFF.
The Board of Adjustment may also employ or contract for and fix the compensation of 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.
§ 55-237 RULES AND REGULATIONS.
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.
§ 55-238 POWERS AND DUTIES.
A.
The powers of the Board of Adjustment shall be in accordance with N.J.S.A. 40:55D-2 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 Board of Adjustment as full and complete powers as may lawfully be conferred upon such Board, including but 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 the zoning regulations of any term, clause, sentence or word thereof 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 Municipal Land Use Law 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.
§ 55-239 APPEALS AND APPLICATIONS.
A.
Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of the Zoning Officer or Building Official of the municipality based on or made in the enforcement of the zoning regulations or Official Map, respectively. Such appeal shall be taken within twenty (20) days by filing a notice of appeals with the officer from whom the appeal was taken, together with three (3) copies of said notice with the Secretary of the Board of Adjustment. Said notice of appeal shall specify the grounds for such 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.
B.
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.
C.
An appeal to the 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 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, upon application, on notice to the officer from whom the appeal is taken and on due cause shown.
§ 55-240 POWER TO REVERSE OR MODIFY DECISIONS.
In exercising the above-mentioned power, the Board of Adjustment may, in conformity with the provisions of the Municipal Land Use Law or amendments thereto or subsequent statutes applying, reverse or affirm, wholly or partly, or modify the action, order, requirement, decision, interpretation 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.
§ 55-241 EXPIRATION OF VARIANCE.
1.
DIVISION 1: EAST AND WEST OF PARKWAY
Approval of a bulk variance (N.J.S.A. 40:55D-70(c)) shall run with the land without time limits; and approval of a use variance (N.J.S.A. 40:55D-70(d)) shall be valid for three (3) years. 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; except further that, in the case of a variance which also involves a subdivision or site plan approval, the variance shall extend for the full period of preliminary or final approval or any extension thereof pursuant to the Municipal Land Use Law.
§ 55-242 POWERS GRANTED BY LAW.
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 regulations.
(2)
Hear and decide requests for interpretation of the Zoning Map or zoning regulations or for decisions upon other special questions upon which such Board is authorized by the zoning regulations to pass.
(3)
Where, 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 of such piece of property, the strict application of any regulation in the zoning regulations would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship including a variance for a conditional use; provided, however, 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 further provided 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 Section 47a of the Municipal Land Use Law.
(4)
In particular cases and for special reasons grant a variance to allow departure from any regulation in the zoning regulations 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 (5) members of the Board of Adjustment.
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 regulations. Any application under any subsection of this section may be referred 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 of Adjustment shall act.
§ 55-243 ADDITIONAL POWERS.
A.
The Board of Adjustment shall, in addition to the powers specified in § 55-242 of this Article, have power given by law to:
(1)
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, but only by an affirmative vote of a majority of the full authorized membership of the Board.
(2)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.
B.
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 or conditional use approval 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 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 Board of Adjustment. 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 master plan and zoning provisions of this chapter.
§ 55-244 TIME LIMIT FOR DECISIONS.
The Board of Adjustment shall render its decision not later than one hundred twenty (120) days after the date that an appeal is taken from the decision of an administrative officer or not later than one hundred twenty (120) days after the submission of a complete application for development to the Board pursuant to the provisions of N.J.S.A. 40:55D-72b. Failure of the Board to render a decision within such one hundred twenty (120) day period or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.