Ewing Township City Zoning Code

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.

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.

Holding of elective office. No member of the Zoning Board of Adjustment shall hold an elective office or position under the municipality.

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.

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.

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.

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.

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.

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.

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.

General bulk variances.

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.

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.

Other powers. The Zoning Board of Adjustment shall have such other powers as prescribed by law, including, but not limited to, the following:

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.

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.

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.

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.

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.

Membership. A Planning Board is hereby created consisting of nine regular and two alternate members of the following four classes:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Powers listed. The Planning Board shall have the powers listed below in addition to other powers established by law:

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.

Meetings.

Public hearings.

Public notice of a hearing.

Records.

Decisions.

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.

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.

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.

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.

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.

Copies of transcripts.

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.

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.

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.

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.

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: