Berkeley Heights City Zoning Code

A.

A Zoning Board of Adjustment is hereby established pursuant to Chapter 291, Laws of N.J. 1975 and Chapter 37, Laws of N.J. 1978, and Chapter 216, Laws of N.J. 1979 (N.J.S.A. 40:55D-69 et seq.). Said Board shall consist of seven (7) regular members and not more than two (2) alternate members, all of whom shall be residents of the Township of Berkeley Heights. Regular members and alternate members shall be appointed by the Mayor. The terms for the regular members shall be four (4) years from January 1 of the year of their appointment; terms for the alternate members shall be two (2) years. Alternate members shall be designated by the Mayor as "Alternate No. 1" and "Alternate No. 2." The initial terms of the regular members and alternate members shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be distributed, in the case of regular members, evenly over the first four (4) years after their appointment, and in the case of the alternate members, evenly over the first two (2) years of their appointment, and provided further that the initial terms of no regular member shall exceed four (4) years and that the initial term of no alternate shall exceed two (2) years.

B.

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.

No member of the Zoning Board of Adjustment may hold any elective office or position under the municipality.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.

The Zoning 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 designated by the Board.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

There is hereby created the office of Attorney to the Zoning Board of Adjustment. The Zoning Board of Adjustment may annually appoint, contract for, and fix the compensation of the Zoning Board of Adjustment Attorney, who shall be an attorney other than the Township Attorney.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

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 and grants, the amount appropriated by the governing body for its use.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

Whenever the performance of his official duties shall require any member of the Zoning Board of Adjustment to deliberate, vote or act upon any matter involving his financial or personal interest pursuant to the Code of Ethics of the Township of Berkeley Heights either directly or indirectly, he shall publicly disqualify himself from participating in the deliberations, as well as voting thereon, and he shall not participate in any discussion or decision relating thereto.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

A.

The Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this Ordinance. In the issuance of subpoenas, administration of oaths and taking of testimony, the provisions of the County and Municipal Investigation Law of 1953 (N.J.S.A. 2A:67A-1 et seq.) shall apply.

B.

All members of the Zoning Board of Adjustment shall serve without compensation.

C.

A member of the Zoning Board of Adjustment who was absent for one (1) or more of the meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one (1) 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.

D.

A condition for any approval by the Zoning Board of Adjustment shall be the certification by the Tax Collector that no taxes or assessments for local improvements are due or delinquent on the property for which application is made.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

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 provisions of this Ordinance.

B.

It is further the intent of this Ordinance to confer upon the Zoning Board of Adjustment the full and complete powers as may be lawfully 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 Ordinance, 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 Ordinance, in accordance with the general or specific rules hereby laid down that equity shall be done. 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 c. 291, P.L. 1975, or subsequent statutes in such cases made and provided, and it shall 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.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

A.

Appeals to the Board of Adjustment may be taken by any interested party or by an officer, department, board, or bureau of the Township affected by any decision of the Zoning Officer, based on or made in the enforcement of the Zoning Ordinance. Each appeal shall be taken within the twenty (20) days prescribed by the statute by filing a notice of appeal 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 said 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.

Applications addressed to the original jurisdiction of the Zoning Board of Adjustment without prior application to the Zoning Officer, shall be filed with the Secretary of the Zoning Board of Adjustment. Three (3) copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than ten (10) days prior to the date set for hearing, the applicant shall also file all plot plans, Site Plans, maps, or other papers required by virtue of any provision of this Ordinance or any rule of the Zoning Board of Adjustment. The applicant shall obtain all necessary forms from the Secretary of the Zoning Board of Adjustment. The Secretary of the Board shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board.

C.

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 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 otherwise than by a restraining order which may be granted by the Zoning Board of Adjustment or by the Superior Court of New Jersey on application or notice to the officer from whom the appeal is taken and on due cause shown.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

In exercising the above mentioned power, the Zoning Board of Adjustment may, in conformity with the provisions of c. 291, P.L. 1975 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 other requirement, decision or determination as it deems appropriate, and to that end have all the powers of the administrative officer from whom the appeal was taken.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

Any variance from the terms of this Ordinance 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 (1) year (twelve months) 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 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 twelve (12) additional months, but not more than one (1) 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.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

The Zoning Board of Adjustment shall have such powers as are granted by law 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 the Zoning Officer based on or made in the enforcement of the Zoning Ordinance.

B.

Hear and decide requests for interpretation of the Zoning Map or Zoning Ordinance, or for decisions upon other special questions upon which such Board is authorized by the Zoning Ordinance to pass.

C.

1. where (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, (b) or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) 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 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;

2.

wherein an application or appeal relating to a specific piece of property the purposes of this act 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.

D.

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 non-conforming use; 3) deviation from a specification or standard pursuant to N.J.S.A. 40:55D-67 pertaining solely to a conditional use; and 4) 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 (1) or two (2) 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 (5) members of the Board.

E.

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 non-conforming 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.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

A.

No variance or other relief may be granted under the terms 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 the purpose of the zone plan and Zoning Ordinance.

B.

An application under this Section may be referred to any appropriate person or agency, including the Planning Board, pursuant to Section 17 of C. 291, P.L. 1975 and C. 216, P.L. 1979, for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

A.

The Zoning Board of Adjustment shall execute such other powers as are authorized in c. 291, P.L. 1975 (Municipal Land Use Law), its amendments and supplement thereto, in addition to the powers specified in this Ordinance.

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 drainage way, flood control basin or public area reserved on the official map.

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.

Applications for variances in conjunction with applications for subdivision, Site Plan, or conditional use approval.

1.

a.

The Zoning 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 pursuant to Parts 9 and 10 of this Ordinance or conditional use approval pursuant to N.J.S.A. 40:55D-67 of C. 291, P.L. 1975 and C. 216, P.L. 1979, whenever the proposed development requires approval by the Zoning Board of Adjustment.

b.

The developer may elect to submit a separate application requesting approval of a 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. 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 Zoning Ordinance. The number of votes of Board members required to grant any such subsequent approval shall be as otherwise provided in this Ordinance for the approval in question, and the special vote pursuant to the aforesaid subsection shall not be required.

2.

Whenever an application for development requests relief pursuant to Section 16.7.1, the Zoning Board of Adjustment shall grant or deny approval of the application within one hundred twenty (120) days after submission by a developer of a complete application to the administrative officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance.

The period for granting or denying any subsequent approval shall be as otherwise provided in this Ordinance. Failure of the Zoning Board of Adjustment to act within the period prescribed shall constitute approval of the application and a certificate of the administrative officer as to the failure of the Zoning Board of Adjustment to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval, herein required, and shall be so accepted by the county recording officer for purposes of filing subdivision plats.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)

A.

The Zoning Board of Adjustment shall render its decision not later than one hundred twenty (120) days after the date 1) an appeal is taken from the decision of the Zoning Officer, or 2) the submission of a complete application for development to the Board pursuant to the provisions of N.J.S.A. 40:55D-70(b).

B.

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.

(Ord. No. 33-2023, § I(Exh. 1), 12-19-2024)