Ewing City Zoning Code
ARTICLE IX
Zoning Board of Adjustment and Planning Board
§ 215-89 Establishment of the Board of Adjustment.
A.
Membership. A Zoning Board of Adjustment is hereby created pursuant to N.J.S.A. 40:55D-69 et seq., consisting of seven regular members and two alternate members, each of whom shall be residents of Ewing Township and be appointed by the Township Council. The members of the heretofore created Zoning Board of Adjustment are hereby reappointed to serve their respective terms. The terms of all new members appointed under this chapter 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; provided, however, that the initial term of no regular member shall exceed four years and that the initial term of no alternate member shall exceed two years. Thereafter, the term of each regular member shall be four years and the term of each alternate member shall be two years.
[Amended 1-22-2008 by Ord. No. 08-01]
B.
Voting. Alternate members shall be designated at the time of their appointment as "Alternate No. 1" and "Alternate No. 2." Alternate members may participate in the 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 is to vote, "Alternate No. 1" shall vote.
C.
Holding of elective office. No member of the Zoning Board of Adjustment shall hold an elective office or position under the municipality.
D.
Vacancies. Any vacancy on said Board occurring other than by expiration of term shall be filled by appointment by the Township Council to serve for the unexpired term of the member whose term shall become vacant. A member may be removed by the Township Council for cause, but only after public hearing, if requested, and other requested procedural due process protections.
[Amended 1-22-2008 by Ord. No. 08-01]
E.
Organization. Yearly, the Zoning Board of Adjustment shall organize annually by selecting from among its regular members a Chairman and a Vice Chairman. The Board shall also select a Secretary who may or may not be a member of the Board or a municipal employee.
F.
Funding. The Township Council, after giving due consideration to budget requests that may be submitted by the Zoning Board of Adjustment, shall make provisions in its budget and appropriate funds for the expenses of the Zoning Board of Adjustment.
G.
Attorney. The office of Zoning Board of Adjustment attorney is hereby created. The Board of Adjustment may annually appoint to such office and fix the compensation or rate of compensation of an attorney at law of New Jersey other than the Municipal Attorney.
H.
Experts and staff. 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, however, shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
§ 215-90 Powers and jurisdiction of Zoning Board of Adjustment.
The Zoning Board of Adjustment shall have the power to:
A.
Error or refusal. Hear and decide appeals where it is alleged by the applicant that there is an error in any order, requirement, decision or refusal made by an official based on or made in the enforcement of the zoning provisions of this chapter.
B.
Exceptions or interpretations. Hear and decide requests for interpretation of the Zoning Map or the zoning provisions of this chapter or for decisions upon other special questions upon which the Board is authorized to pass by any zoning provisions of this chapter or by any duty adopted Official Map.
C.
General bulk 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 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, grant 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 this chapter would be advanced by a deviation from the zoning requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from such zoning requirements; provided, however, that no variance from those departures enumerated in § 215-90D hereinbelow [(N.J.S.A. 40:55D-70(d)] shall be granted under this section, 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 § 215-93A(7) [N.J.S.A.40:55D-60(a)].
D.
Use variance, variances from conditional use standards, and major specific bulk variances. In particular cases and for special reasons, grant a variance to allow departure from the zoning provisions of this chapter to permit: a use or principal structure in a district restricted against such use or principal structure; an expansion of a nonconforming use; deviation from a particular specification or standard set forth in this chapter as pertaining solely to a conditional use; an increase in the permitted floor area ratio as defined in this chapter and in N.J.S.A. 40:55D-4; an increase in the permitted density as defined in this chapter and 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 isolated undersized lot or lots resulting from a minor subdivision, in which event applications would be made pursuant to § 215-90C hereinabove. A variance under this subsection shall be granted only by affirmative vote of at least five members of the Board.
E.
General provisions. 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 the zoning provisions of this 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 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, 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.
F.
Other powers. The Zoning Board of Adjustment shall have such other powers as prescribed by law, including, but not limited to, the following:
(1)
Direct issuance of a construction permit pursuant to N.J.S.A. 40:55D-34 for the construction of a building or structure within the bed of a mapped street or public drainageway, flood control basin or public area as shown on a duly adopted Official Map of the municipality whenever one or more parcels of land within the bed cannot yield a reasonable return to the owner unless a construction permit is granted. The Board may grant such relief only by affirmative vote of a majority of the full authorized membership of the Zoning Board of Adjustment, ensuring that such relief will tend to cause a minimum change of the Official Map and will not significantly add to the cost of opening any proposed street. The Board shall impose reasonable requirements as a condition of granting the construction permit so as to promote the health, morals, safety and general welfare of the public.
(2)
Direct issuance of a construction permit pursuant to N.J.S.A. 40:55D-36 for the construction of a building or structure on a lot not abutting a street which is shown on a duly adopted Official Map of the municipality or which is an existing state, county or municipal street or highway; or a street shown upon a plat approved by the Municipal Planning Board or a street on a plat duty filed in the office of the County Recording Officer. The Board may grant such relief only when the enforcement of the statute requirement that a building lot abut a street would entail practical difficulty or unnecessary hardship or where the circumstances of the case do not require the building or structure to abut a street. The Board shall impose requirements or conditions that will provide adequate access for fire-fighting equipment, ambulances and other necessary emergency vehicles for the protection of the health and safety and that will protect any future street layout on the Official Map or on the general circulation plan element of the Municipal Master Plan.
(3)
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, site plan or conditional use approval whenever the proposed development requires approval by the Zoning Board of Adjustment of a variance pursuant to § 215-90D. The developer may elect to submit a separate application requesting approval of the 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 a 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 the zoning provisions of this chapter. The number of votes of Board members required to grant such subsequent approval shall be as otherwise provided in this chapter for the approval in question, and the special vote pursuant to § 215-90D shall not be required. An application under this article 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.
§ 215-91 Appeals and applications to Zoning Board of Adjustment.
A.
Filing. Appeals to the Zoning Board of Adjustment may be taken by any interested party affected by any decision of a municipal official of the municipality based on or made in the enforcement of the zoning provisions of this chapter or a duly adopted Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal with the official from whom the appeal is taken, with three copies of the notice given to the Secretary of the Zoning Board of Adjustment. The notice shall specify the grounds for the appeal. The official 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.
Power of appeal. The Zoning 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 powers of the municipal official from whom the appeal is taken.
C.
Stay of proceedings. An appeal to the Zoning Board of Adjustment shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the municipal official from whose action the appeal is taken certifies to the Zoning Board of Adjustment, after the notice of appeal shall have been filed with him/her, that by reason of facts stated in the certificate a stay would, in his/her 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 municipal official from whom the appeal is taken and due cause shown.
D.
Application for development. A developer may file an application for development with the Zoning Board of Adjustment for action under any of its powers without prior application to a municipal official.
E.
Time for decision. The Zoning Board of Adjustment shall act upon any appeal or any application for development within 120 days either from the date the appeal is taken from the decision of the municipal official or from the date the application is certified as a complete application, as the case may be, or within such further time as may be consented to by the applicant, except that when an applicant elects to submit separate consecutive applications for use 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 use variance and the time period for granting or denying any subsequent approval shall be as otherwise provided in this chapter. A certificate as to the failure of the Board of Adjustment to act shall be issued by the Administrative Officer upon the request of the applicant.
§ 215-92 Establishment of a Planning Board.
A.
Membership. A Planning Board is hereby created consisting of nine regular and two alternate members of the following four classes:
(1)
Class I: the Mayor.
(2)
Class II: one of the officials of the Township other than a member the governing body, to be appointed by the Mayor, provided that, if there be an Environmental Commission, the member of the Environmental Commission who is also a member of the Planning Board shall be deemed to be the Class II Planning Board member for purposes of this chapter in the event there be among the Class IV or alternate members of the Planning Board both a member of the Zoning Board of Adjustment and a member of the Board of Education.
(3)
Class III: amember of the governing body to be appointed by it.
(4)
Class IV regular member: six other citizens of the Township to be appointed by the Mayor. The members of Class IV shall hold no other municipal office, except that one member may be a member of the Zoning Board of Adjustment and one may be a member of the Board of Education. A member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A shall be a Class IV Planning Board member unless there be among the Class IV regular or alternate members of the Planning Board both a member of the Zoning Board of Adjustment and a member of the Board of Education, in which case the member of the Environmental Commission shall be deemed to be the Class II member of the Planning Board.
(5)
Class IV alternate members: two other citizens of the Township to be appointed by the Mayor, alternate members shall meet the qualifications of Class IV regular members and shall be designated by the Mayor at the time of their appointment as "Alternate No. 1" and "Alternate No. 2."
B.
Term of office: Classes I, II and III. 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.
C.
Present members: Class IV. 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 Zoning Board of Adjustment or the Board of Education shall terminate whenever he/she is no longer a member of such other body or at the completion of his or her Class IV term, whichever comes first.
D.
Term of office: Class IV. 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.
E.
Term of office: alternate members. The terms of the Class IV alternate members shall be 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 any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. All terms shall run from January 1 of the year in which the appointment is made.
F.
Voting. Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member of any class. 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.
G.
Vacancies. If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment as above provided for the unexpired term. Any member other than a Class I member may be removed by the governing body for cause but only after public hearing, if requested, and other requested procedural due process protection.
H.
Organization. Annually, the Planning Board shall organize by selecting from among its Class IV regular members a Chairman and a Vice Chairman. The Board shall also select a Secretary who may or may not be a member of the Board or an employee of the Township.
I.
Funding. The Township Council, after giving due consideration to budget requests that may be submitted by the Planning Board, shall make provisions in its budget and appropriate funds for the expenses of the Planning Board.
J.
Attorney. The office of Planning Board attorney is hereby created. The Planning Board may appoint to such office and fix compensation or rate of compensation of an attorney at law of New Jersey other than the Township Attorney.
K.
Experts and staff. The Planning Board 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, however, shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
§ 215-93 Powers and jurisdiction of Planning Board.
A.
Powers listed. The Planning Board shall have the powers listed below in addition to other powers established by law:
(1)
Make, adopt and amend a Master Plan for the physical development of the Township, including any areas outside its boundaries which, in the Board's judgement, bear essential relationship to the planning of the Township.
(2)
Administer the subdivision, conditional use permit and site plan review provisions of the Land Development Ordinance in accordance with the applicable provisions of the ordinance.
(3)
Participate in the preparation and review of programs or plans required by state or federal law or regulation.
(4)
Assemble data on a continuing basis as part of a continuous planning process.
(5)
Annually, at the request of the Township Council, prepare a program of municipal capital improvements projects projected over a term of six years and recommend same to the Township Council.
(6)
Consider and report to the Township Council within 35 days after referral as to any proposed development regulation submitted to it and also pass upon other matters specifically referred to the Planning Board by the Township Council.
(7)
Other powers.
(a)
The Planning Board shall have such other powers as prescribed by law, including, but not limited to, the power to grant the following variances, to the same extent and subject to the same restrictions as the Zoning Board of Adjustment, when the Planning Board is reviewing applications for approval of subdivision plats, site plans or conditional uses:
[2]
Direction pursuant to § 215-90F(1) of this chapter for 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.
[3]
Direction pursuant to § 215-90F(2) of this chapter for issuance of a permit for a building or structure on a lot not abutting a street.
(b)
Whenever relief is requested pursuant to this subsection, notice of the hearing on the application for development shall include reference to the request for a variance or direction for issuance of a permit, as the case may be. The developer may elect to submit a separate application requesting approval of the variance or direction of the issuance of a permit and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance or direction of the issuance of a permit shall be conditioned upon grant of all required subsequent approvals by the Planning Board. No such subsequent approval shall be granted unless the 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.
(8)
Perform such other advisory duties as are assigned to it by ordinance or resolution of the Township Council for the aid and assistance of the Council or other agencies or officers.
§ 215-94 Citizens Advisory Committee.
The Mayor may appoint one or more persons as a citizens advisory committee 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. Such person or persons shall serve at the pleasure of the Mayor.
§ 215-95 Provisions applicable to both Planning Board and Zoning Board of Adjustment.
[Amended by Ord. No. 1991-22]
A.
Conflicts of interest. No regular or alternate member of the Planning Board or Zoning Board of Adjustment shall act on any matter in which he/she has either directly or indirectly any personal or financial interest. Whenever any such member shall disqualify himself from acting on a particular matter, he/she shall not continue to sit with the Board on the hearing of such matter nor participate in any discussion or decision relating thereto.
B.
Meetings.
(1)
Meetings of both the Planning Board and the Zoning Board of Adjustment shall be scheduled no less than once a month, and any meeting so scheduled shall be held as scheduled unless cancelled for lack of applications for development to process.
(2)
Special meetings may be provided for at the call of the Chairman or on the request of any two Board members, which meetings shall be held on notice to its members and the public in accordance with all applicable legal requirements.
(3)
No action shall be taken at any meeting without a quorum being present, the quorum to be the majority of the full authorized membership of the Board.
(4)
All actions shall be taken by the majority vote of the members of the Board present at the meeting except as otherwise required by a provision of N.J.S.A. 40:55D-1 et seq. Failure of a motion to receive the number of votes required to approve an application for development pursuant to the exceptional vote requirements of N.J.S.A. 40:55D-34 or 40:55D-70d shall be deemed an action denying the application. 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, notwithstanding his absence from one or more of the meetings; provided, however, that such Board member has available to him/her the transcript or recording of all of the hearings from which he/she was absent, and certifies in writing to the Board that he/she has read such transcript or listened to such recording.
(5)
All regular meetings and all special meetings shall be open to the public, except as provided in the Open Public Meeting Law, c. 231, Laws of New Jersey, 1975. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meeting Law, c. 231, Laws of New Jersey, 1975 (N.J.S.A. 10:4-6 et seq.).
C.
Public hearings.
(1)
The Planning Board or the Zoning Board of Adjustment, as the case may be, shall hold a hearing on each application for development. Each Board shall make rules governing such hearings.
(2)
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 applicant may produce any documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.
(3)
The officer presiding at the hearings, or such person as he/she 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 Municipal Investigations Law, P.L. 1953, c. 38 (N.J.S.A. 2A:67A-1 et seq.) shall apply.
(4)
The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, or such other person as he/she may designate, 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.
(5)
Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.
D.
Public notice of a hearing.
(1)
Public notice of a hearing shall be given for the following applications for development:
(a)
Any request for a variance;
(b)
Any request for conditional use approval;
(c)
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 [see § 215-90F(1) and (2)];
(d)
Any request for site plan and/or subdivision approval involving one or more of the aforesaid elements; and
(e)
Any request for preliminary approval of a major subdivision and/or preliminary major site plan.
(2)
The Secretary of the Planning Board or the Zoning Board of Adjustment, as the case may be, shall notify the applicant 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 applicant at least 10 days prior to the date of the hearing in the following manner:
(a)
By publication in an official newspaper of the Township, if there is one, or in a newspaper of general circulation in the Township in the absence of an official newspaper.
(b)
By notification by personal service or certified mail to the following. An affidavit of proof of the giving of the required notice shall be filed by the applicant with the municipal agency at or prior to the hearing. It is not required that a return receipt is obtained, notice is deemed complete upon mailing (N.J.S.A. 40:55D-14).
[1]
To all owners of real property as shown on the current tax duplicate, located in the state and within 200 feet in all directions of the property which is the subject of the hearing, 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.
[a]
Notice to a partnership owner may be made by service upon any partner.
[b]
Notice to a corporate owner may be made by service upon its president, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation.
[c]
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 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.
[2]
To the Clerk of any adjoining municipality or municipalities when the property involved is located within 200 feet of the adjoining municipality or municipalities.
[3]
To the Mercer County Planning Board when the application for development involves property adjacent to an existing county road or proposed road as shown on the County Official Map or County Master Plan, adjoining other County land or situated within 200 feet of a municipality boundary.
[4]
To the Commissioner of Transportation of the State of New Jersey when the property abuts a state highway.
[5]
To the Director of the Division of State and Regional Planning in the Department of Community Affairs when the hearing involves an application for the development of 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 Township.
(3)
Upon the written request of an applicant, the Administrative Officer shall, within seven days, make and certify a list from current tax duplicates of names and addresses of owners within the Township to whom the applicant is required to give notice. The applicant shall be charged $0.25 per name or $10, whichever is greater, for the list and shall be entitled to rely upon the information contained in such list, and failure to give notice to any lot owner not on the list shall not invalidate any hearing or proceeding. Additionally, the applicant shall be responsible for giving proper notice to all property owners pursuant to § 215-95D(2)(b) above who do not reside within the Township.
(4)
The notice shall state the date, time and place of the hearing and the nature of the matters to be discussed, and an identification of the property proposed for development by street address, if any, and by reference to lot and block numbers as shown on the current tax duplicate in the Township Tax Assessor's office, and the location and times at which any maps or documents for which approval is sought are available for inspection.
E.
Records.
(1)
Minutes of every regular or special meeting shall be kept and shall include the names and addresses of the persons appearing and addressing the Planning Board or the Zoning Board of Adjustment and of any persons appearing by attorney; the action taken by the Planning or Zoning Board; the findings, if any, made by it and the reasons therefor. The minutes shall thereafter be made available, after approval by the Board, for public inspection during the 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 Article X of this chapter.
(2)
A verbatim recording shall be made of every hearing. The recording of the proceedings shall be made either by stenographer, mechanical or electrical means. The municipality shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense, provided that the charge for a transcript shall not exceed the maximum amount permitted in N.J.S.A. 2A:11-15, and as indicated in Article X of this chapter. Each transcript shall be certified in writing by the transcriber to be accurate.
F.
Decisions.
(1)
Each decision on any application for development shall be reduced to writing by the Board and shall include findings of facts and conclusions based thereon.
(2)
The Board shall provide the findings and conclusions through:
(a)
A resolution adopted at a meeting held within the time period provided in this chapter for action by the Board on the application for development; or
(b)
A memorializing resolution adopted at a meeting held no later than 45 days after the date of the meeting at which the Board voted to grant or deny approval. Only the members of the Board who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. An action pursuant to N.J.S.A. 40:55D-9 (resulting from the failure of a motion to approved an application) shall be memorialized by resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution.
(3)
The vote on any memorializing resolution shall be deemed to be a memorialization of the action of the Board and not to be an action of the Board; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required in Articles VIII and IX of this chapter.
(4)
If the Board fails to adopt a resolution or memorializing resolution as hereinabove specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the Board to reduce its findings and conclusions to writing within a stated time, and the cost of the application, including attorneys' fees, shall be assessed against the municipality.
G.
Complete application. An application for development shall be complete for purposes of commencing the applicable time period for action by the Planning Board or Board of Adjustment, as applicable, when so certified by the Administrative Officer. In the event that the Administrative Officer does not certify the application to be complete within 45 days of the date of its submission, the application shall be deemed complete upon the expiration of the forty-five-day period for purposes of commencing the applicable time period unless the application lacks information indicated on the checklist which shall be provided to the applicant at the time of application, and the Administrative Officer has notified the applicant in writing, of the deficiencies in the application within 45 days of submission of the application. The applicant may request that one or more of the submission requirements be waived, in which event the Planning Board or Board of Adjustment shall grant or deny the request within 45 days. Nothing herein shall be construed as diminishing the applicant's obligation to prove in the application process that he/she is entitled to approval of the application. The Planning Board or Board of Adjustment may subsequently require correction of any information found to be in error and submission of additional information not specified in this chapter or any revisions in the accompanying documents as are reasonably necessary to make an informed decision as to whether the requirements necessary for approval of the application for development have been met. The application shall not be deemed incomplete for lack of any such additional information or any revisions in the accompanying documents so required by the municipal agency.
H.
Referral to Environmental Commission. Whenever the Environmental Commission has prepared and submitted to the Planning Board or the Board of Adjustment an index of the natural resources of the municipality, the Board shall make available to the Environmental Commission an informational copy of every application for development. Failure of the Planning Board or the Board of Adjustment to make such informational copy available to the Environmental Commission shall not invalidate any hearing or proceeding.
I.
Site review committee. The Board of Adjustment and the Planning Board may establish site review committees, or a joint committee serving both Boards, which may be made up of Board members and Board professional advisors and Township officials, for the purpose of holding informal reviews with applicants, determining the completeness of applications, and reviewing and making recommendations to the Board of Adjustment or Planning Board on applications for development.
§ 215-96 Appeal of decisions.
A.
Right to appeal. Any interested party may appeal to the Township Council any final decision of the Zoning Board of Adjustment approving an application for a use variance pursuant to N.J.S.A. 40:55D-70d. and § 215-90D. Notwithstanding the aforesaid right of appeal to the Township Council, any party has the right to obtain a review of such Zoning Board of Adjustment decision by any court of competent jurisdiction according to law.
B.
Filing. Any appeal to the Township Council shall be made within 10 days of the date of publication of such final decision pursuant to § 215-97. The appeal to the Township Council shall be made by serving the Township Clerk in person or by certified mail with a notice of appeal specifying the grounds thereof and the name and address of the appellant and the name and address of his attorney, if represented.
C.
Copies of transcripts.
(1)
The appellant shall either:
(a)
Within five days of serving notice of the appeal, arrange for a transcript and six copies thereof for use by the Township Council and pay a deposit of $50 or the estimated cost for such transcription, whichever is less, provided that the charge by the Township to the applicant for the transcript shall not exceed the maximum permitted in N.J.S.A. 2A:11-15; or
(b)
Within 35 days of serving notice of the appeal, submit a transcript to the Township Clerk for use by the Township Council.
(2)
Should the appellant neither arrange for or submit a transcript as provided hereinabove, the Township Council may dismiss the appeal for failure to prosecute.
(3)
All transcripts shall be certified in writing by the transcriber to be accurate.
D.
Notice of review meeting. Notice of the meeting to review the record below shall be given by the Township Council by personal service or certified mail to the appellant, to those entitled to notice of a decision pursuant to § 215-97, and to the Zoning Board of Adjustment at least 10 days prior to the date of the meeting. The appeal shall be decided by the Township Council only upon the record established by the Zoning Board of Adjustment. The parties may submit oral and written arguments on the record at the Township Council meeting, and the Township Council shall provide and pay for verbatim recording and transcripts of such meeting.
E.
Time for decision. The Township Council shall conclude a review of the record below not later than 95 days from the publication of the notice of the subject decision of the Zoning Board of Adjustment, unless the appellant consents in writing to an extension of such time period. Failure of the Township Council to hold a hearing and conclude a review of the record below and to render a decision within such specified period without such written consent of the appellant shall constitute a decision affirming the action of the Zoning Board of Adjustment.
F.
Decisions. The Township Council may reverse, remand or affirm, with or without conditions, the final decision of the Zoning Board of Adjustment being appealed. The affirmative vote of three members of the Township Council shall be necessary to reverse, remand, or impose or remove conditions upon the aforesaid final decision. In the event that an affirmative vote of three members of the Township Council is not obtained, the aforesaid final decision shall be deemed affirmed without change.
G.
Stay of proceedings. An appeal to the Township Council shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the Zoning Board of Adjustment certifies to the Township Council, after the notice of appeal has been filed with the Board, that by reasons of facts stated in the certificate a stay would, in its 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 on application upon notice to the Zoning Board of Adjustment and on good cause shown.
§ 215-97 Notice of decisions.
A.
Procedure. Any decisions of the Planning Board or the Zoning Board of Adjustment when acting upon an application for development and any decision of the Township Council when acting upon an appeal shall be given notice in the following manner:
(1)
A copy of the decision shall be mailed by the appropriate Township authority within 10 days of the date of decision to the applicant 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 by the Township authority for such service.
(2)
A brief notice of every final decision shall be published in the official newspaper of the Township. Such publications shall be arranged and paid for by the applicant. The notice shall be sent to an official newspaper for publication within 10 days of the date of any such decision.
(3)
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 fee calculated in the same manner as those established for copies of other public documents in the Township, as indicated in Article X of this chapter.