Florence Township City Zoning Code
ARTICLE XXI
Zoning Board of Adjustment
§ 91-149 Establishment; membership; terms; organization.
A.
A Zoning Board of Adjustment, also known as the "Board of Adjustment," is hereby established and shall consist of seven regular members and not more than two alternate members. Alternate members shall be designated at the time of appointment by the authority appointing them as "Alternate No. 1" and "Alternate No. 2".
B.
The members of the Board of Adjustment shall be appointed by the governing body. 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. Thereafter, the terms of each regular member shall be for four years. 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. Thereafter, the term of each alternate member shall be for two years. No regular member or alternate member may hold any elective office or position under the Township. No regular member or alternate member shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. A regular member or alternate member may, after public hearing if he requests it, be removed by the governing body for cause. A vacancy occurring otherwise than by expiration of a term held by a regular member or alternate member shall be filled for the unexpired term only.
C.
The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and select a Secretary, who may or may not be a member of the Board of Adjustment or a municipal employee.
D.
Alternate members may participate in 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 member is to vote, Alternate No. 1 shall vote.
§ 91-150 Powers and duties; variances.
A.
The Board of Adjustment shall have the power 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 the Zoning Officer based on or made in the enforcement of Part 3 of this chapter.
(2)
Hear and decide, in accordance with the provisions of Part 3 of this chapter, requests for interpretation of the Zoning Map[1] or Part 3 of this chapter or for decisions upon other special questions upon which such Board is authorized to pass by Part 3, Zoning, or Part 1, Article XI, Official Map, of this chapter.
[1]
Editor's Note: A copy of the Zoning Map is included in the pocket at the end of this Code.
(3)
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 situations or conditions of such piece of property, the strict application of any regulation pursuant to Part 3 of this chapter would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the developer of such property, grant, upon an application or appeal relating to such property, a variance from such strict application of such regulation 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 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 such the Planning Board shall review a request for a variance pursuant to§ 91-33A(1) of this chapter.
(a)
Any bulk variance granted under the terms of this section without concurrent site plan or subdivision approval shall expire one year after the date of approval unless the use is commenced prior thereto or an extension of time is granted by the Zoning Board of Adjustment.
(b)
Any bulk variance granted under the terms of this section together with site plan or subdivision approval shall expire two years after the date of approval unless the use is commenced prior thereto or an extension of time is granted by the Zoning Board of Adjustment.
(4)
Grant a variance to allow a structure or use in a district restricted against such structure or use in particular cases and for special reasons, but only by an affirmative vote of at least two-thirds ( 2/3) of the full authorized membership of the Board.
B.
Variances.
(2)
In the case of an application for a variance pursuant to § 91-150A(4) of this chapter, the applicant shall demonstrate to the satisfaction of the Zoning Board of Adjustment that, notwithstanding the fact that the proposed use is prohibited in the zoning district, it would not be inconsistent with such prohibition to allow such use on applicant's property. The Zoning Board of Adjustment shall evaluate all adverse impacts of the applicant's use on adjacent and neighborhood properties, as well as all beneficial effects, and shall not grant the variance unless it concludes, on the basis of clear and specific findings set forth in its resolution, that the benefits outweigh the detriments.
(3)
Additional standards for approval of use or "d" variances.[2] In addition to the requirements set forth in § 91-150B of this chapter, no variances shall be granted pursuant to § 91-150A(4) of this chapter unless the applicant proves, and the Board of Adjustment finds, one of the following ultimate facts:
(a)
The proposed use is:
[1]
An "inherently beneficial" use as determined by the courts.
[2]
The proposed use, if located at the applicant's site, advances the purposes of the zoning plan and Part 3 of this chapter because such site is particularly suitable for such use; proof of the general social benefits of the proposed use without reference to its location at the applicant's site will not meet this standard; or
[3]
The applicant's property is incapable of being used in any manner that conforms with the use regulations for the zoning district in which it is located.
[2]
Editor's Note: See N.J.S.A. 40:55D-70d.
(4)
Duration of use variance.
(a)
Any use variance granted under the terms of this section without concurrent site plan or subdivision approval shall expire one year after the date of approval unless the use is commenced prior thereto or an extension of time is granted by the Zoning Board of Adjustment.
(b)
Any use variance granted under the terms of this section together with site plan or subdivision approval shall expire two years after the date of approval unless the use is commenced prior thereto or an extension of time is granted by the Zoning Board of Adjustment.
(c)
When the use of a property is abandoned for more than one year, which use was the subject of a use variance, the variance shall be deemed to have lapsed. Thereafter, the use may not be resumed without Zoning Board of Adjustment approval as provided for by § 91-150A(4).
(5)
Duration of variances other than use variances.
[Added 5-5-1999 by Ord. No. 1999-9]
(a)
Any variance other than a use variance which has been granted by the Zoning Board of Adjustment shall expire one year after the date of publication of the decision granting the variance, unless the construction for which the variance was granted shall have been commenced.
(b)
Any variance other than a use variance which has been granted by the Planning Board in conjunction with an approved minor subdivision shall expire 190 days after the date on which the resolution of municipal approval of the minor subdivision is adopted, unless the subdivision shall have been perfected by the filing and recording of a plan or deed as required by law.
(c)
Any variance other than a use variance which has been granted by the Planning Board in conjunction with an approved major subdivision shall expire upon expiration of the rights conferred by the decision granting subdivision approval, or upon expiration of final approval pursuant to N.J.S.A. 40:55D-54.
(d)
Any variance other than a use variance which has been granted by the Planning Board in conjunction with approval of a site plan shall expire and shall be treated as having been abandoned on the same date that approval of the site plan shall expire as provided by law.
(e)
The Planning Board or Zoning Board of Adjustment, as the case may be, may for good cause extend the expiration date of a variance other than a use variance for not more than one additional year. Where a variance has been granted in conjunction with a major subdivision or major site plan approval and the applicant, upon application for extension of a variance, proves to the reasonable satisfaction of the Planning Board that applicant was barred or prevented, directly or indirectly, from proceeding with development because of delays in obtaining legally required approvals from other governmental entities and that the applicant applied promptly for and diligently pursued these approvals, the applicant shall be entitled to an extension equal to the period of time applicant was barred or prevented from proceeding with development.
§ 91-151 Employment of special staff and other personnel.
The Board of Adjustment may employ or contract for and fix the compensation of legal counsel, other than the Municipal Attorney, a professional planner, a professional engineer and other staff and services as it shall deem necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the Mayor and Council for its use.
§ 91-152 Appeals; applications for development.
A.
Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of the Construction Code Official or Zoning Officer of the Township based on or made in the enforcement of Part 3, Zoning, or the Official Map. Such appeal shall be taken within 20 days by filing a notice of appeal with the Construction Code Official or Zoning Officer 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.[1]
B.
A developer may file an application for development with the Board of Adjustment for action under any of its powers without prior application to the Construction Code Official or Zoning Officer.
C.
If an application for development is filed with the Board of Adjustment, whether or not an appeal from a decision of the Construction Code Official or Zoning Officer is also taken, the applicant shall submit three copies of his completed application to the Administrative Officer. The time for the Board's review shall not begin to run until the submission of a complete application with the required fee. Unless the applicant is informed, in writing, by the Administrative Officer within 45 days of the actual submission of the application that it is incomplete, said application shall be deemed complete as of the date it was submitted.
D.
In reviewing variance applications, the reviewing authority shall determine that sufficient information has been submitted for the reviewing authority to fully evaluate the hardship and/or special reasons which would require relief from the zoning standards of this chapter.
(1)
Bulk variances. An applicant for bulk variance or variances shall submit the following:
(a)
The required application forms supplied by the Administrative Officer.
(c)
Ten copies of a boundary survey of the property by a licensed New Jersey land surveyor.
(e)
A sketch plan outlining the location, nature and extent of any variance or variances requested.
(f)
A sketch of the proposed addition or new construction for which a variance is sought, demonstrating how same is architecturally consistent with the existing structure or an improvement thereof.
(2)
Use variance (with minor subdivision or site plan). An applicant for a use variance pursuant to N.J.S.A. 40:55D-70d which will also require minor subdivision or minor site plan approval shall submit the information required for bulk variances in Subsection D(1) above, and in addition the application shall provide a written statement delineating the exact proposed use requested.
(3)
Variances (with major subdivision, major site plan and/or conditional use). An applicant for a variance pursuant to N.J.S.A. 40:55D-70c or 55D-70d, including use variances, which will also require major subdivision, major site plan and/or conditional use approval shall submit the following:
(a)
The required application form supplied by the Administrative Officer.
(c)
A certified survey of the property.
(d)
A certificate by the Tax Collector that all taxes on said property are paid to date.
(e)
A variance plan showing the limits of the proposed construction.
(f)
Architectural renderings and a sketch plat, including, at a minimum, the data required under § 91-54 which the applicant will accept as binding as a condition of approval of any subsequent application for major site plan, major subdivision and/or conditional approval.
(h)
A written statement delineating the exact proposed use requested.
§ 91-153 Time limit for decisions.
A.
The Board of Adjustment shall render a decision not later than 120 days after the date an appeal is taken from the decision of the Construction Code Official or Zoning Officer or the submission of a complete application for development to the Board pursuant to § 91-152B of this chapter.
B.
Failure of the Board to render a decision within such one-hundred-twenty-day period or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.
§ 91-154 Appeals.
The Board of Adjustment may reverse or affirm, in whole 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 Zoning Officer from whom the appeal is taken.
§ 91-155 Stay of proceedings.
An appeal to the Board shall stay all proceedings in furtherance of the action with respect to which the decision appealed from was made, unless the Construction Code Official or Zoning Officer from whose action the appeal is taken certifies to the Board, 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.
§ 91-156 Additional powers.
A.
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 pursuant to Part 2 of this chapter or conditional use approval pursuant to this chapter whenever the Board of Adjustment is reviewing an application for approval of a variance pursuant to § 91-150A(4) of this chapter.
C.
Whenever an application for development requests relief pursuant to Subsection B of this section, the Board of Adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a complete 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 Clerk of the County of Burlington for purposes of filing subdivision plats.
D.
Whenever review or approval of the application by the Burlington County Planning Board is required by Section 5 of P.L. 1968, c. 285 (N.J.S.A. 40:27-6.3), in the case of a subdivision, or Section 8 of P.L. 1968, c. 285 (N.J.S.A. 40:27-6.6), 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 Planning Board or approval by the Planning Board by its failure to report thereupon within the required time.
E.
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.
§ 91-157 Period of approval.
A.
Any variance from the terms of this Part 3 hereinafter granted by the Zoning Board of Adjustment or the Planning Board pursuant to the authority contained under N.J.S.A. 40:55D-1 et seq., permitting the erection or alteration of any structure or structures or permitting the specified use of any premises shall expire by limitation unless said construction or alteration shall have actually been commenced on each and every structure permitted by said variance, or unless such permitted use shall have actually been commenced within one year from the date of entry of the judgment and determination of the Zoning Board of Adjustment or Planning Board, 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 Zoning Board of Adjustment or the Planning Board to the governing body or to a court of competent jurisdiction until the determination any matters of such appeal or proceeding.
B.
In the event that, during the period of approval heretofore or hereafter granted to an application for development, the developer is barred or prevented, directly or indirectly, from a proceeding with the development otherwise permitted under such approval by a legal action instituted by any state agency, political subdivision or other party to protect the public health and welfare or by a directive or order issued by any state agency, political subdivision or court of competent jurisdiction to protect the public health or welfare and the developer is otherwise ready, willing and able to proceed with said development, the running of the period of approval under this chapter or under any ordinance repealed by this chapter, as the case may be, shall be suspended for the period of time said legal action is pending or such directive or order is in effect.