Edgewater City Zoning Code
ARTICLE III
Zoning Board of Adjustment
§ 240-19 Establishment; composition.
A.
A Zoning Board of Adjustment is hereby established, pursuant to N.J.S.A. 40:55D-69 et seq., consisting of seven regular members and two alternate members appointed by the Borough Council. The regular members shall serve for terms of four years from 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 years after their appointment, provided that the initial term of no member shall exceed four years. Nothing in this chapter shall, however, be construed to affect the terms of any present members of the Zoning 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 Zoning Board of Adjustment may hold any elective office or position under the municipality.
C.
A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
D.
All members of the Zoning Board of Adjustment shall be entitled to a yearly stipend in the amount of $150. The Board Chairman shall receive an additional $50 per year.
[Added 7-16-2018 by Ord. No. 2018-013]
§ 240-20 Alternate members.
A.
There shall be two alternate members of the Board of Adjustment appointed by the Borough Council. The alternate members shall be designated at the time of appointment as "Alternate No. 1" and "Alternate No. 2." The terms of the alternate members shall be for two years, except that the terms of the alternate members shall be such that the term of not more than one alternate member shall expire in any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. Notwithstanding the aforesaid, the initial terms of the members shall be arranged so as to accomplish the intent of this section.
B.
The alternate members may participate in discussion 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.
§ 240-21 Quorum.
[Added 9-20-2010 by Ord. No. 1439-2010]
If the Board of Adjustment lacks a quorum because any of its regular or alternate members is prohibited by N.J.S.A. 40:55D-69 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, for that matter only, as temporary members of the Board of Adjustment. The 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.
§ 240-22 Officers.
The 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.
§ 240-23 Removal for cause and conflict of interest.
A member may, after public hearing if he requests it, be removed by the Council for cause. No member shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. An alternate member may, after public hearing if he requests one, be removed by the Borough Council for cause.
§ 240-24 Employment of counsel, experts and staff.
The Zoning Board of Adjustment may also employ, or contract for, and fix the compensation of legal counsel and such experts and other staff and services as it may deem necessary. The Board shall not authorize expenditures which exceed, exclusive of funding or grants, the amount appropriated by the governing body for its use.
§ 240-25 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.
§ 240-26 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 Ordinance.
(3)
Granting of variances.
(a)
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 or condition of such piece of property, the strict application of any regulation in the Zoning Ordinance would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, a variance from such strict application may be granted, so as to relieve such difficulties or hardship; 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 approval.
(b)
In particular cases and for special reasons, grant a variance to allow a principal use or structure in a district restricted against such use or principal structure; an expansion of a nonconforming use; a deviation from a specification or standard pertaining solely to a conditional use; an increase in the permitted floor area ratio; an increase in the permitted density, except as applied to the required lot area for a lot or lots for detached one- or two-family dwelling unit buildings, which lot or lots are either an isolated undeveloped sized lot or lots resulting from a minor subdivision; or a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure, but only by the affirmative vote of five members of the Board.
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 the Zoning Ordinance. 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 Zoning Board of Adjustment shall act.
§ 240-27 Additional powers.
A.
The Zoning Board of Adjustment shall, in addition to the powers specified in § 240-26 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 public 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.
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 pursuant to N.J.S.A. 40:55D-67 whenever the Board is reviewing an application for approval of a use variance pursuant to Article III, § 240-26A(3)(b) of this chapter.
§ 240-28 Appeals and applications.
A.
Appeals to the Board of Adjustment may be taken by any person aggrieved or by an officer, department, board or bureau of the municipality affected by any decision of the administrative officer. Each appeal shall be taken within the 20 days prescribed by the statute by filing a notice of appeal with the officer from whom the appeal was taken, together with 14 copies of said notice with the Zoning Officer. Said notice of appeal shall specify the grounds of 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 Board of Adjustment without prior application to an administrative officer shall be filed with the Zoning Officer. The applicant shall complete all portions of the application form minimally 15 days prior to the scheduled meeting and submit 16 copies of the application and 16 copies of the plans and reports associated with the application. The submission of the application shall be accompanied by a completed checklist as adopted as part of this chapter (see Appendix A[1]). The Zoning Officer shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board.
[1]
Editor's Note: Appendix A is on file in the Borough offices.
C.
Appeals from Board of Adjustment to governing body. An appeal from any decision of the Zoning Board of Adjustment granting a use variance pursuant to the provisions of N.J.S.A. 40:55D-17d may be taken to the governing body, provided that such appeal shall be made within 10 days of the date of publication of such final decision of the Board of Adjustment.
D.
An appeal stays 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 of the Superior Court of New Jersey on application or notice to the officer from whom the appeal is taken and on due cause shown.
§ 240-29 Power to reverse or modify decisions.
In exercising the above-mentioned power, the Board of Adjustment may, in conformity with the provisions of N.J.S.A. 40:55D-1 et seq., or amendments thereto, or subsequent statutes applying, reverse or affirm, wholly or partly, or 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.
§ 240-30 Expiration of variance.
Any variance from the terms of this chapter hereafter granted by the Board of Adjustment permitting the erection or alteration of any structures or permitting a specified use of any premises shall expire by limitation unless such construction or alteration shall have actually commenced on each and every structure permitted by said variance or unless such permitted use has actually been commenced within one year from the date of entry 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 governing body, or to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding.
§ 240-31 Time for decision.
The Board of Adjustment shall render its decision not later than 120 days after the date an appeal is taken from the decision of an administrative officer or of the submission of a complete application for development to the Board pursuant to the provisions of N.J.S.A. 40:55D-70, or as otherwise provided in N.J.S.A. 40:55D-1 et seq. Failure of the Board to render a decision within such one-hundred-twenty-day period or as otherwise provided, within such further time as may be consented to by the applicant, shall constitute a decision favorable to the applicant.