Clayton City Zoning Code
ARTICLE VII
Planning Board
§ 88-61 Establishment and composition.
A.
Establishment. A Planning Board is hereby created for the purposes set forth in this chapter and for such other duties as may from time to time be assigned to it by the Borough Council. The Planning Board shall consist of nine members and two alternates, who shall be designated "Alternate No. 1" and "Alternate No. 2."
B.
Membership.
(1)
Members shall be appointed according to the following classes:
(a)
Class I. The Mayor or the Mayor's designee in the absence of the Mayor.
(b)
Class II. One of the officials of the Borough other than a member of the Borough Council, to be appointed by the Mayor. However, if there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall be deemed to be the Class II Planning Board member for purposes of this chapter in the event that there be among the Class IV or alternate members of the Planning Board a member of the Board of Education.
(c)
Class III. A member of the Borough Council to be appointed by it.
(d)
Class IV. Other citizens of the Borough, to be appointed by the Mayor. Members of Class IV shall hold no other municipal office, position or employment except that one member may be a member of the Historic Preservation Commission, if established pursuant to N.J.S.A. 40:55D-1, and one member may be a member of the Board of Education. If there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall be a Class IV member unless there be among the Class IV or alternate members of the Planning Board a member of the Board of Education, in which case the member common to the Planning Board and Environmental Commission shall be deemed a Class II member of the Planning Board. For the purposes of this section, membership on a Borough board or commission whose function is advisory in nature, and the establishment of which is discretionary and not required by statute, shall not be considered the holding of a Borough office.
(2)
Terms of members.
(a)
The term of the member composing Class I shall correspond with his official tenure. The terms of the members composing Class II and Class III shall be for one year or terminate at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the Environmental Commission. The term of a Class II (or Class IV) member who is also a member of the Environmental Commission shall be for three years or terminate at the completion of his term as a member of the Environmental Commission, whichever comes first.
(b)
All present Class IV members of the Planning Board shall continue in office until the completion of the terms for which they were appointed. The term of a Class IV member who is also a member of the Board of Education shall terminate whenever he or she is no longer a member of such other body or at the completion of his or her Class IV term, whichever comes first.
(c)
The terms of Class IV regular members first appointed pursuant to this chapter shall be so determined that to the greatest practicable extent the expiration of such term shall be evenly distributed over the first four years after their appointment, provided that the initial term shall not exceed four years. Thereafter, the term of each Class IV regular member shall be four years. All terms shall run from January 1 of the year in which the appointment is made.
(3)
Members and alternates shall not participate in any hearing in which they have, either directly or indirectly, any personal or financial interest.
(4)
Any member or alternate other than the Mayor, after a public hearing if he or she requests it, may be removed by the Borough Council for cause.
(5)
Alternate members.
(a)
Alternate members shall be appointed by the Mayor and shall meet the qualifications of Class IV members.
(b)
Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member.
(c)
A vote shall not be delayed to permit the voting of an absent regular member.
(d)
In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 will vote.
§ 88-62 Powers.
A.
The Planning Board shall have to power to:
(1)
Prepare, maintain, adopt and administer the Master Plan.
(2)
Prepare, maintain, and administer the subdivision, site plan, and zoning ordinances within this chapter and hear and decide applications made pursuant thereto.
(3)
Prepare, maintain, and administer the Official Map.
(4)
Prepare a capital improvements program.
(5)
Review proposed amendments to the subdivision, site plan, and zoning ordinances within this chapter and the Official Map, and make recommendations regarding the same to the Borough Council.
(6)
Hear and decide applications for conditional uses.
(7)
Hear and decide applications for variances and certain building permits when in conjunction with applications for subdivision, site plan and conditional use approval pursuant to Article 8 of N.J.S.A. 40:55D-1 et seq.
B.
The Planning Board may:
C.
When acting as the Zoning Board of Adjustment, the Planning Board shall have the power 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 officer based on or made in the enforcement of the zoning provisions of this chapter.
(2)
Hear and decide requests for interpretation of the Zoning Map, zoning provisions of this chapter, Official Map, or for decisions upon other special questions upon which the Board is authorized to pass.
(3)
Hear and decide variance requests pertaining to:
(a)
"c" variances.
[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 structures lawfully existing thereon, the strict application of any regulation of the zoning provisions 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 the Municipal Land Use Law[1] would be advanced by a deviation from the zoning provisions of this chapter and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from the zoning provisions of this chapter; provided, however, that no variance from those departures enumerated in Subsection C(3)(b) of this section shall be granted under this subsection.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
(b)
"d" variances.
[1]
In particular cases and for special reasons, grant a variance to allow departure from the zoning provisions of this chapter 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 pertaining solely to a conditional use.
[d]
An increase in the permitted floor area ratio.
[e]
An increase in the permitted density, 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 the district for a principal structure.
[2]
Variances granted under this subsection shall be granted only by affirmative vote of at least five members. When considering applications under this subsection, the Class I and the Class III members shall not participate in the applications for development.
(c)
Negative criteria. 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 purpose of the zone plan and zoning provisions of this chapter.
(4)
Exercise such other powers which are authorized by N.J.S.A. 40:55D-76.
§ 88-63 Organization and advisory bodies.
A.
Organization.
(1)
The Planning Board shall elect a Chairperson and Vice Chairperson from one of its members of Class IV.
(2)
The Planning Board shall select a Secretary, who may or may not be a member or a municipal employee.
(3)
The Borough Council shall make provision in its budget and appropriate funds for the expenses of the Planning Board.
(4)
The Planning Board may employ, or contract for, and fix the compensation of legal counsel, other than the municipal attorney, and experts and other staff and services as it may deem necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the Borough Council for its use.
(5)
The Borough Council may establish in the Salary Ordinance a manner of compensation and reimbursement of expenses for members and alternates of the Planning Board.
B.
Advisory bodies.
(1)
A citizens' advisory committee may be appointed by the Mayor, and shall serve at the pleasure of the Mayor, to assist or collaborate with the Planning Board in its duties, but such person or persons shall have no power to vote or take other action required of the Board.
(2)
The Planning Board shall make available to the Environmental Commission an informational copy of every application submitted for development, although failure on the part of the Planning Board to make such informational copy available to the Environmental Commission shall not invalidate any hearing or procedure.
§ 88-64 Annual report.
A.
The Planning Board, in its capacity as Zoning Board of Adjustment, shall, at least once a year, review its decisions on applications and appeals for variances and prepare and adopt by resolution a report of its findings on the zoning provisions of this chapter which were the subject of variance requests.
B.
The report shall contain recommendations relative to amendments or revisions to the zoning provisions of this chapter, if any.
C.
The report shall be sent to the Borough Council.
§ 88-65 Appeals and applications when acting as Zoning Board of Adjustment.
A.
Appeals and applications.
(1)
Appeals to the Planning Board may be taken by any interested party affected by any decision of the Administrative Officer of the Borough based on or made in the enforcement of the zoning provisions of this chapter or the Official Map.
(2)
Such appeal shall be taken within 20 days by filing a notice of appeal with the Administrative Officer, specifying the grounds of such appeal.
(3)
The Administrative Officer shall immediately transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
(4)
A developer may file an application for development with the Planning Board for action under any of its powers without prior application to the Administrative Officer.
B.
Time for decision.
(2)
Failure of the Planning Board to render a decision within the prescribed time period, or within such further time as may be consented to by the developer, shall constitute a decision favorable to the developer. If an applicant elects to submit separate consecutive applications for "d" 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 "d" variance, and the time period for granting or denying any subsequent approval shall be as otherwise provided in this chapter.
C.
Modification of appeal. The Planning 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 shall have all the powers of the Administrative Officer from whom the appeal is taken.
D.
Stay of proceedings by appeal; exception.
(1)
An appeal to the Planning Board shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the Administrative Officer certifies to the Board, after the notice of appeal has 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.
(2)
In such case, proceedings shall not be stayed other than by order of the Superior Court upon notice to the Administrative Officer and on due cause shown.
§ 88-66 Meetings.
A.
Regular meetings of the Planning Board shall be fixed for the entire calendar year and set for a certain time and place. Regular meetings shall be scheduled no less than once a month and shall be held as scheduled unless canceled for lack of applications for development to process.
B.
Special meetings may be held at the call of the Chairperson or on the request of any two Board members, and which shall be held on notice to its members and the public in accordance with all legal requirements.
C.
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.
D.
All actions shall be taken by a majority vote of the members of the Board at the meeting except as otherwise required by 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; provided, however, that such Board member certifies in writing to the Board that he or she has read a transcript or listened to a recording of all of the hearings from which he or she was absent.
E.
All regular and special meetings shall be open to the public and notice of all such meetings shall be given in accordance with state requirements.
F.
Minutes of every regular and special meeting shall be kept and shall include the names of the persons appearing and addressing the Board and of the persons appearing by attorney, the action taken by the Board, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection during 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 § 88-84 of this chapter.
§ 88-67 Public hearings.
B.
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 developer may produce other documents, records, or testimony at the hearing to substantiate, clarify, or supplement the previously filed maps and documents.
C.
The officer presiding at the hearing 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 Municipality Investigations Law (N.J.S.A. 2A:67A-1 et seq.) shall apply.
D.
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.
E.
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 Borough shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his or her expense, provided that the charge for a transcript shall not exceed the maximum amount permitted in N.J.S.A. 2B:7-4 and as indicated in § 88-84 of this chapter. Each transcript shall be certified in writing by the transcriber to be accurate.[2]
F.
If an applicant desires a certified court reporter, the costs of taking testimony and transcribing it and providing a copy of the transcript to the Borough or court shall be at the expense of the applicant, who shall also arrange for the attendance by the reporter. All costs for transcription of the record before the Board shall be the entire and sole obligation of the applicant or appellant, whichever requests the transcript. The obligation to obtain and pay for such transcript shall be solely that of the applicant or appellant who requests the transcript.
§ 88-68 Public notice of hearings.
A.
Public notice of a hearing shall be given by the developer for the following applications for development:
(1)
Any request for a variance.
(2)
Any request for conditional use approval.
(3)
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.
(5)
Any request for preliminary approval of a major subdivision or major site plan.
[Amended 2-11-2016 by Ord. No. 1-2016]
B.
The Administrative Officer shall notify the developer 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 developer at least 10 days prior to the date of the hearing in the following manner:
(1)
By publication in the official newspaper of the Borough, if there is one, or in a newspaper of general circulation in the Borough.
(2)
By notice 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, provided that this requirement shall be deemed satisfied by notice to the condominium association, in the case of any unit owner whose unit has a unit above or below it, or horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it. 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 by certified mail to the property owner at his address as shown on the current tax duplicate. It is not required that a return receipt is obtained as notice is deemed complete upon mailing.
(3)
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 homeowners' association, because of its ownership of common elements or areas located within 200 feet of the property which is the subject of the public 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.
(4)
To the clerk of any adjoining municipality or municipalities when the application for development involves property located within 200 feet of said municipality or municipalities. Notice shall be given by personal service or certified mail.
(5)
To the Gloucester County Planning Board when the application for development involves property adjacent to an existing county road or proposed road shown on the County Official Map or on the 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.
(6)
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.
(7)
To the State Planning Commission when the application for development involves 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 Borough.
(8)
Notice of hearings on applications for approval of a major subdivision or a site plan, not defined as a minor site plan by this chapter, requiring public notice pursuant to Subsection A of this section shall be given to public utilities, cable television companies or local utilities which possess a right-of-way or easement within the Borough and which have registered with the Borough in accordance with N.J.S.A. 40:55D-1 et seq. Notice shall be given by personal service or certified mail to the person whose name and address appears on the registration form.
C.
Upon the written request of a developer, the Administrative Officer shall, within seven days, make and certify a list from the current tax duplicates of names and addresses of owners within the Borough to whom the developer is required to give notice. In addition, the Administrative Officer shall include on the list the names, addresses and positions of those persons who, not less than seven days prior to the date on which the developer requested the list, have registered to receive notice pursuant to Subsection B(8) of this section. The developer shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner or to any public utility, cable television company, or local utility not on the list shall not invalidate any hearing or proceeding. A sum not to exceed $0.25 per name, or $10, whichever is greater, may be charged for such list.
D.
The developer shall file an affidavit of proof of service with the Planning Board.
E.
The notice shall state the date, time and place of the hearing, the nature of the matters to be considered, 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 Borough Tax Assessor's office, and the location and times at which any maps and documents for which approval is sought are available for inspection.
§ 88-69 Notice requirement for hearing on change to zoning classification or boundaries.
A.
Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the Master Plan by the Planning Board pursuant to Section 76 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-89), shall be given prior to adoption in accordance with the provisions of this chapter.
B.
A notice pursuant to this section shall state the date, time and place of the hearing, the nature of the matter to be considered and an identification of the affected zoning districts and proposed boundary changes, if any, by street names, common names or other identifiable landmarks, and by reference to lot and block numbers as shown on the current tax duplicate in the municipal Tax Assessor's office.
§ 88-70 Decisions.
A.
The Board shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing.
B.
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.
C.
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.
D.
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 thereof.
§ 88-71 Appeal of decisions.
A.
All appeals of decisions made by the Planning Board, except as noted below, shall be taken directly to the Superior Court of New Jersey and not to the Borough of Clayton Council.
B.
Any interested party may appeal to the Borough of Clayton Council any final decision of the Planning Board involving the granting of a variance as specified in N.J.S.A. 40:55D-70d. Such appeals shall be decided upon the record established by the Board of Adjustment. The filing and hearing of such appeals shall be in accordance with the provisions of N.J.S.A. 40:55D-17.
§ 88-72 Notice of decision.
Any decision of the Planning Board when acting upon an application for development and any decisions of the Borough Council when acting upon an appeal shall be given notice in the following manner:
A.
A copy of the decision shall be mailed by the municipal agency within 10 days of the date of the decision to the developer 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 in § 88-84 of this chapter.
B.
A brief notice of the decision shall be published in the official newspaper of the Borough. Such publications shall be arranged by the Secretary of the Planning Board or the Borough Clerk, as the case may be, without separate charge to the developer other than that collected for publication at the time of submittal of the application. The notice shall be sent to the official newspaper for publication within 10 days of the date of the decision.
C.
A copy of the decision shall also be filed in the office of the Administrative Officer, who shall make a copy of such filed decision available to any interested party upon payment of a reasonable fee and available for public inspection at the office during business hours.