Berkeley Township City Zoning Code
ARTICLE IV
Zoning Board of Adjustment
§ 35-6.1 Establishment.
[Ord. No. 94-29 § 118-5A; Ord. No. 06-38-OAB § 1]
The Zoning Board of Adjustment presently in existence pursuant to N.J.S.A. 40:55D-69 et seq., is hereby continued. The Zoning Board of Adjustment shall consist of seven regular members and may have not more than four alternate members. Alternate members shall be designated at the time of appointment by the authority appointing them as "Alternate No. 1," "Alternate No. 2," "Alternate No. 3" and Alternate No. 4." The terms of the members first appointed under this act 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 years after their appointment and, in the case of alternate members, evenly over the first two years after their appointment. Thereafter, the term of each regular member shall be four years and the term of each alternate member shall be two years. No member may hold any elective office or position (under the municipality). 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 first, Alternate No. 2, second, Alternate No. 3, third and Alternate No. 4, fourth.
§ 35-6.2 Terms.
[Ord. No. 94-29 § 118-5B]
The members of the Board of Adjustment shall continue in office until their respective terms expire.
§ 35-6.3 Conflicts.
[Ord. No. 94-29 § 118-5C]
No member of the Board of Adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. No member may hold elective office or position under the municipality.
§ 35-6.4 Vacancies.
[Ord. No. 94-29 § 118-5D]
A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only, as hereinabove provided.
§ 35-6.5 Removal.
[Ord. No. 94-29 § 118-5E]
A member may, after public hearing if he requests one, be removed by the Township Council for cause.
§ 35-6.6 Officers.
[Ord. No. 94-29 § 118-5F]
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 a Board member or another municipal employee.
§ 35-6.7 Board of Adjustment Attorney.
[Ord. No. 94-29 § 118-5G]
There is hereby created the office of Attorney to the Zoning Board of Adjustment. The Zoning Board of Adjustment may annually appoint and 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.
§ 35-6.8 Experts and Staff.
[Ord. No. 94-29 § 118-5H]
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 Township Council for its use.
§ 35-6.9 Rules and Regulations.
[Ord. No. 94-29 § 118-5I]
The Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter.
§ 35-6.10 Powers of Zoning Board of Adjustment.
[Ord. No. 94-29 § 118-5J; Ord. No. 01-21-OAB § 6; Ord. No. 07-05-OAB §§ 1,2; Ord. No. 07-07-OAB §§ 1,2]
The 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 the Zoning Officer based on or made in the enforcement of the Zoning Ordinance.
[Amended 2-28-2022 by Ord. No. 22-07-OAB]
1.
Appeals to the Board of Adjustment may be taken by any interested party. Each appeal shall be taken within the 20 days prescribed by N.J.S.A. 40:55D-72 by filing a notice of appeal with the Zoning Officer, together with three copies of the notice with the Secretary of the Board of Adjustment. The notice of appeal shall specify the grounds for the appeal. The Zoning Officer shall be advised of the appeal and immediately transmit to the Board all the papers constituting the record upon which the action appealed from was taken. Said Zoning Officer shall be given notice for attendance for the hearing on the matter before the Board of Adjustment.
2.
An appeal stays all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the Zoning Officer 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 cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Superior Court of New Jersey on application or notice to the Zoning Officer and on due course shown.
3.
The Board of Adjustment may, in conformity with the provisions of N.J.S.A. 40:55D-69 et seq., 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 administrative officer from whom the appeal was taken.
b.
Hear and decide requests for interpretation of the Zoning Map or Ordinance or for decisions upon other special questions upon which such Board is authorized to pass by any Zoning or Official Map Ordinance in accordance with this Act.
c.
General Variances.
1.
Where, by reason of exceptional narrowness, shallowness or shape of a specific 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 Article 8 of the Act would result in peculiar and 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 the Act would be advanced by a deviation from the Zoning Ordinance requirement and the benefit of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to Article 8 of the Act; provided, however, that no variance from those departures enumerated in Subsection d of this subsection 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-60a.
d.
Additional Variances.
1.
In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to Article 8 of the Act to permit:
(a)
A use or principal structure in a district restricted against such use or principal structure.
(b)
An expansion of a nonconforming use.
(c)
Deviation from a specification or standard pursuant to N.J.S.A. 40.55D-67 pertaining solely to a conditional use.
(d)
An increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-40.
(e)
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 undersized lot or lots resulting from a minor subdivision.
(f)
A height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in a district for a principal structure.
A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or 2/3 of the full authorized membership, in the case of a regional board pursuant to Article 10 of the Act. |
2.
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 purpose of the zone plan and zoning ordinances. 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 for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.
e.
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.
f.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.
g.
Issue certificates of appropriateness in the Pinelands Area pursuant to N.J.A.C. 7:50-6.153(b).
§ 35-6.11 Referral.
[Ord. No. 94-29 § 118-5K]
The Board of Adjustment may, at its option, refer an application 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 Zoning Board of Adjustment shall act.
§ 35-6.12 Time for Decision.
[Ord. No. 94-29 § 118-5L]
The Board of Adjustment shall render its decision not later than 120 days after the date that an appeal is taken from the decision of a municipal officer or of the submission of a complete application for development to the Administrative Officer. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the applicant for approval of the variance. The period for granting or denying any subsequent approval shall be otherwise provided in this Act. Failure of the Board of Adjustment to act within the period prescribed shall constitute approval of the application, and a certificate of the Administrative Officer as to failure of the 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.
§ 35-6.13 Appeal to the Governing Body.
[Ord. No. 94-29 § 118-5M]
Any interested party may appeal to the Township Council any final decision of the Board of Adjustment approving an application for development pursuant to the provisions of N.J.S.A. 40:55D-17.
§ 35-6.14 Expiration of Variance.
[Ord. No. 94-29 § 118-5N]
Any variance 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 development has actually been commenced, within a time period specified by the Board of Adjustment from the date of publication of the notice 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 Township Council, or to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding. Where subdivision or site plan approval is required, the period of time for commencement of the development specified by the Board of Adjustment shall be the same as the period of time for which other rights are conferred upon the applicant by such subdivision or site plan approval pursuant to the provisions of this chapter.