Fair Haven City Zoning Code
§ 30-3.2
Zoning Board of Adjustment.
[Ord. B-417 § 3.2, 1998; 2002 Code § 16.12.020]
a.
Establishment. The Zoning Board of Adjustment presently in existence pursuant to N.J.S.A. 40:55D-69 is continued to consist of seven regular members, and two alternate members who shall be residents of the Borough and appointed by the Mayor and confirmed by the Borough Council.
b.
Terms. The members of the Board of Adjustment shall continue until their respective terms expire. Thereafter, the terms of each member shall be four years from January 1 of the year of their appointment. The terms of members first appointed under this section shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be distributed, in the case or 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 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.
c.
Alternates.
1.
The Mayor may appoint and the Council confirm two alternate members who shall be designated at the time of their appointment as "Alternate No. 1" and "Alternate No. 2." Alternate members shall meet the same qualifications as regular members.
2.
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. 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.
d.
Conflicts and Lack of Quorum. No member of the Board of Adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. No member may hold elective office or position under the municipality. 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 interests 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 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.
e.
Vacancies. A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only, as here and above provided.
f.
Removal. A member may, after public hearing if he requests it, be removed by the Borough Council for cause.
g.
Officers. The Board of Adjustment shall elect a Chairman and Vice Chairman from its regular members and shall select a Secretary who may or may not be a Board member of another municipal employee.
h.
Board of Adjustment Attorney. There is created the office of Attorney to the Zoning Board of Adjustment. The Zoning Board of Adjustment may annually appoint, fix the compensation of or agree upon the rate of compensation of or agree upon the rate of compensation of the Zoning Board of Adjustment Attorney, who shall be an attorney other than the Borough Attorney. The Board shall not, however, expend an amount exclusive of gifts or grants, in excess of the amount appropriated by the Borough Council for its use.
i.
Expenses, Experts and Staff. The Borough Council shall make provisions in its budget and appropriate funds for the expenses of the Board of Adjustment. 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 shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the Borough Council for its use.
j.
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.
k.
Powers of the Zoning Board of Adjustment.
1.
The Board of Adjustment shall have the power to:
(a)
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 provisions of this chapter adopted pursuant to N.J.S.A. 40:55D-62 through 68.
(1)
Appeals to the Board of Adjustment may be taken by an interested party. Each appeal shall be taken within 20 days prescribed by N.J.S.A. 50:55D-72 by filing a notice of appeal with the officer from whom the appeal was taken, together with three copies of the notice with the Secretary of the Board of Adjustment. The notice of appeal shall specify the grounds for the 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.
(2)
An appeal stays all proceedings in furtherance of the action in respect of 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 cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Adjustment or by the Superior Court of New Jersey on application or notice to the officer from whom the appeal is taken and on due cause shown.
(3)
The Board of Adjustment may, in conformity with the provisions of N.J.S.A. 40:55D-1 et seq., reverse or affirm wholly or partly or may modify the order, requirements, decision or determination appealed from, and make such other requirement, decision or determination a sought to be made, and to that end have all the powers of the administrative officer from whom the appeal was taken.
(b)
Hear and decide requests for interpretation of the zoning map or zoning provisions of this chapter adopted pursuant to N.J.S.A. 40:55D-62 through 68, or for decisions upon other special questions upon which such Board is authorized by this chapter to pass.
(c)
Grant, upon an application or an appeal, relief from regulations pursuant to N.J.S.A. 40:55D-62 through 68, except those departures enumerated in N.J.S.A. 40:55D-70d, where:
(1)
The strict application of such regulation would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the developer of a property for any of the following reasons:
i.
By reason of exceptional narrowness, shallowness or shape of the specific piece of property; or
ii.
By reasons of exceptional topographic conditions or physical features uniquely affecting the specific piece of property; or
iii.
By reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon; or
(2)
The purposes of N.J.S.A. 40:55D-1 et seq. would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, and further provided that the fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this subsection.
(d)
Grant, upon an application or an appeal, in particular cases and for special reasons, by affirmative vote of at least five members, a variance to allow departures from regulations pursuant to N.J.S.A. 40:55D-62 through 68 to permit the following:
(1)
A use or principal structure in a district restricted against such use or principal structure;
(2)
An expansion of a nonconforming use;
(3)
Deviation from a specification or standard pertaining solely to a conditional use;
(4)
An increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4;
(5)
An increase in the permitted density as defined 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 an isolated undersized lot or lots resulting from a minor subdivision;
(6)
A height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.
If an application for development requests one or more variances but not a variance for a purpose enumerated under paragraphs k1(d) of this subsection, the decision on the requested variance or variances shall be rendered under paragraph k1(c) of this subsection.
No variance or other relief may be granted under the terms of N.J.S.A. 40:55D-70d, including a variance or other relief involving an inherently beneficial use, without a showing that 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 this chapter. An application under this subsection may be referred to any appropriate person or agency, provided such reference shall not extend the period of time within which the Board of Adjustment shall act.
2.
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 pursuant to N.J.S.A. 40:55D-37 through 59 or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever the proposed development requires approval by the Board of Adjustment of a variance pursuant to N.J.S.A. 40:55D-70d. 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 grant of all required subsequent approvals by the 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 zoning regulations. The number of votes of the Board members required to grant any such subsequent approval shall be as otherwise provided in N.J.S.A. 40:55D-1 et seq. for the approval in question, and the special vote pursuant to the aforesaid subsection d of N.J.S.A. 40:55D-70 shall not be required.
3.
The Board of Adjustment shall have the power to direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a 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. The Board of Adjustment shall not exercise the power otherwise granted by this section if the proposed development required approval by the Planning Board of a subdivision, site plan, or conditional use in conjunction with which the Planning Board has the power to direct the issuance of a permit pursuant to N.J.S.A. 40:55D-60b.
4.
The Board of Adjustment shall have the power to direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street. The Board of adjustment shall not exercise the power otherwise granted by this section if the proposed development required approval by the Planning Board of a subdivision, site plan, or conditional use in conjunction with which the Planning Board has the power to direct the issuance of a permit pursuant to N.J.S.A. 40:55D-60c.
l.
The Zoning Board of Adjustment shall, at least once a year, review its decision on applications and appeals for variances and prepare and adopt by resolution a report on its findings on zoning ordinance provisions which were the subject of variance requests and its recommendations for zoning ordinance amendment or revision, if any. The Zoning Board shall send copies of the report and resolution to the Borough Council and the Planning Board.