Delaware City Zoning Code
ARTICLE VI
Zoning Board of Adjustment
§ 230-57 Appointments.
A Zoning Board of Adjustment is hereby established in accordance with N.J.S.A. 40:55D-69 and shall consist of seven members, residents of the municipality who shall be appointed by the governing body and who shall not hold any elective office or position under the municipality. The governing body may also appoint two alternate members, residents of the municipality who shall not hold any elective office or position under the municipality, to serve in rotation during the absence or disqualification of any regular member or members. Alternate members shall be designated by the governing body at the time of their appointment as "Alternate No. 1" and "Alternate No. 2."
§ 230-58 Terms of office.
The terms of the regular members first appointed under this chapter shall be so determined that to the greatest practicable extent, the expiration of such terms shall be distributed evenly over the first four years after their appointment, and in the case of alternate members, evenly over the first two years of their appointment; provided the initial terms of no regular member shall exceed four years and of no alternate member two years. Thereafter, the term of each regular member shall be four years and of each alternate member two years.
§ 230-59 Removal for cause.
No member of the Zoning Board of Adjustment shall be permitted to act on any matter, in which he or she has, either directly or indirectly, any personal or financial interest. Any member may, after a public hearing if he or she requests one, be removed by the governing body for cause. A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
§ 230-60 Quorum.
A quorum of the Zoning Board of Adjustment shall be a majority of the full authorized membership.
§ 230-61 Absent members, alternates and substitute members.
A.
Absent members. When any hearing before a Zoning Board of Adjustment shall carry over two or more meetings, a member of the Board who was absent for one or more of the meetings shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his or her absence from one or more of the meetings; provided, however, that such Board member has available to him or her a transcript or recording of the meeting from which he or she was absent, and certifies in writing to the Board that such transcript or recording was heard or listened to.
B.
Alternates. Alternate members may participate in all matters but may not vote except in the absence or disqualification of a regular member. Participation of alternate members shall not be deemed to increase the size of the Zoning Board of Adjustment established by ordinance. 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.
C.
Substitute members when conflicts exist. If the Board of Adjustment lacks a quorum because any of its regular or alternate members is prohibited from acting on a matter due to the member's personal or financial interest therein, Class IV members of the Planning Board shall be called upon to serve in order of seniority of continuous service to the Planning Board until there are the minimum number of members necessary to constitute a quorum to act upon the matter without any personal or financial interest therein, whether direct or indirect. If a choice has to be made between Class IV members of equal seniority, the Chairman of the Planning Board shall make the choice.
§ 230-62 Organization.
The Zoning Board of Adjustment shall elect a Chairman and Vice Chairman from its regular members and select a Secretary who may or may not be a member of the Board of Adjustment or a municipal employee.
§ 230-63 Powers.
The Board of Adjustment shall have the power to:
A.
Determine appeals. 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 this chapter. If the Board of Adjustment determines there is an error in any order, requirement, decision or refusal made by the administrative officer pursuant to a report submitted by the Historic Preservation Commission or Planning Board in accordance with N.J.S.A. 40:55D-111, the Board of Adjustment shall include the reasons for its determination in the findings of its decision thereon.
B.
Determine ordinance interpretations. Hear and decide, in accordance with N.J.S.A. 40:55D-70b., requests for the 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.
C.
Hear and decide variances per N.J.S.A. 40:55D-70c.
(1)
Hear and decide requests for variances to depart from the zoning regulations:
(a)
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 the structures lawfully existing thereon, the strict application of any regulation of this chapter would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the developer of such property.
(b)
Where in an application or appeal relating to a specific piece of property the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning requirements of this chapter and the benefits of the deviation would substantially outweigh any detriment.
(2)
The power of the Zoning Board of Adjustment to hear and decide variances under this section shall be subject to the following:
(a)
The fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this section.
(b)
No variance shall be granted under this section from those departures from the zoning regulations enumerated in Subsection D below.
(c)
If the proposed development requires approval by the Planning Board of a subdivision, site plan or conditional use and does not also involve a request for a variance pursuant to N.J.S.A. 40:55D-70d (Subsection D), the Planning Board, and not the Zoning Board of Adjustment, shall review the request for variance in conjunction therewith.
(d)
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such a 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 municipal zone plan and zoning ordinance.
D.
Hear and decide variances per N.J.S.A. 40:55D-70d.
(1)
In particular cases and for special reasons, and only by an affirmative vote of at least five members of the Board, hear and decide requests for variances to depart from the zoning regulations of the Land Use Ordinance with respect to:
(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, as defined in the Municipal Land Use Law.
(e)
An increase in the permitted density as defined in the Municipal Land Use Law, 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)
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 municipal zone plan and the zoning ordinance.
E.
Referrals to other agencies. 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.
§ 230-64 Expenses and costs.
A.
Appropriation of funds. The governing body shall make provision in its budget and appropriate funds for the expenses of the Zoning Board of Adjustment.
B.
Employment of personnel. The Board of Adjustment 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 and grants, the amount appropriated by the governing body for its use.
§ 230-65 Appeals and applications.
A.
Appeals process. Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the Land Use Ordinance or Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of 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.
Developer applications. 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.
§ 230-66 Time for decision.
A.
Decision time frame. The Board of Adjustment shall render a decision not later than 120 days after the date: an appeal is taken from the decision of an administrative officer; or the determination of the completeness of an application for development to the Board of Adjustment pursuant to Articles VIII, IX, and X of this chapter.
B.
Failure to act within the time frame. Failure of the Board to render a decision within such 120 days period or within such further time as may be consented to by the applicant, shall constitute a decision favorable to the applicant.
C.
Time frame for decisions. Whenever an application for development requests relief pursuant to § 230-69B below, the Board of Adjustment shall grant or deny approval of the application within 120 days after determination of completeness of an application to the administrative officer or within such further time as may be consented to by the applicant. 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 the 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.
D.
Subsequent applications for other approvals. An applicant 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 Board of Adjustment provided that no such subsequent approval shall be granted except in compliance with the provisions of § 230-63C(2)(d) or D(2), as applicable. The vote required to grant the subsequent approval shall be a majority of those present, and the time period for action on the subsequent approval shall be as otherwise provided in this chapter for the particular approval in question.
§ 230-67 Modification on appeal.
The Board of Adjustment 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 the powers of the administrative officer from whom the appeal is taken.
§ 230-68 Stay of proceedings.
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 whose action 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 other than by an order of the Superior Court upon notice to the officer from whom the appeal is taken and on due cause shown.
§ 230-69 Other powers.
A.
Direction for the issuance of permits. Sections 230-65 through 230-68 above shall also apply to the power of the Zoning Board of Adjustment to:
(1)
Direct the issuance of permits for buildings and structures in areas reserved pursuant to the Official Map. Direct the 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 reserved pursuant to the Official Map of the municipality if such has been adopted.
(2)
Direct the issuance of permits for buildings and structures not related to a street. Direct, pursuant to N.J.S.A. 40:55D-36, the issuance of a permit for a building or structure not related to a street.
(3)
Direct the issuance of certificates of prior nonconforming uses and structures. Direct the issuance of a certificate of prior nonconforming use or structure pursuant to N.J.S.A. 40:55D-68.
B.
Subdivision, site plan, and conditional use approvals. 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 Board of Adjustment is reviewing an application for approval of a variance under N.J.S.A. 40:55D-70d.
C.
County Planning Board approval. Whenever review or approval of the application by the County Planning Board is required in the case of a subdivision on a county road or in the case of a site plan, the Board of Adjustment shall condition any approval that it grants upon timely receipt of a favorable report on the application by the County Planning Board or approval by the County Planning Board by its failure to report thereon within 30 days.
D.
Planning Board approval. An application under this section shall be referred to 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.
§ 230-70 Environmental Commission review.
Whenever the Environmental Commission has prepared and submitted to the governing body an index of the natural resources of the municipality, the Board of Adjustment shall make available to the Environmental Commission an informational copy of every application for development submitted to the Board of Adjustment. Failure of the Board of Adjustment to make such informational copy available to the Environmental Commission shall not invalidate any hearing or proceeding.
§ 230-71 Annual report on variances heard by Zoning Board.
The 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 Land Use Ordinance provisions which were the subject of variance requests and its recommendations for Land Use Ordinance amendments or revisions, if any. The Board of Adjustment shall send copies of the report and resolution to the governing body and the Planning Board.