Hopewell Township City Zoning Code
ARTICLE IV
VARIANCES, HEARINGS, TIME LIMITS, APPLICATION REVIEW
§ 17-53 GRANT OF VARIANCES BY BOARD OF ADJUSTMENT.
[Ord. #528; Ord. #566-80; Ord. #662-84, § 1; Ord. #723-86 § 2]
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 this chapter.
b.
Hear and decide, in accordance with the provisions of this chapter, requests for interpretation of the zoning map or ordinance or for decisions upon other special questions upon which such board is authorized to pass by the zoning ordinance or official map, if any.
c.
1.
Where: (a) by reason of exceptional narrowness, shallowness, or shape of a specific piece of property; or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property; or (c) 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 pursuant to 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 an appeal relating to such property, 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 act would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from zoning regulations: provided, however, that no variance from those departures enumerated in section 17-53d 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 this chapter.
d.
In particular cases and for special reasons, grant a variance to allow departure from zoning regulations to permit:
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 pursuant to section 17-56 pertaining solely to a conditional use;
5.
An increase in permitted density as defined in section 17-181 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. A variance under this section shall be granted only by affirmative vote of at least five members in the case of a municipal board.
e.
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 zoning ordinance. In respect to 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 for its report; provided that such reference shall not extend the period of time within which the zoning board of adjustment shall act.
f.
Referral to Planning Board or Others.
1.
The board of adjustment may refer to the planning board all applications for a use variance, for its comments and recommendations with respect to the compatibility of the proposal with the master plan and the zoning ordinance, applications for similar uses which have been and are currently being considered for other sites; and land use, traffic and other factors which the planning board deems pertinent. The board of adjustment may also refer to the planning board all subdivision and site plan applications, for its comments and recommendations. The township administrator shall distribute to both the board of adjustment and the planning board copies of all applications to the board of adjustment for a use variance and for subdivision or site plan approval.
2.
The board of adjustment may refer any application under this section to any appropriate person or agency, for its report.
3.
Reference to the planning board or to another person or agency shall not extend the period within which the board of adjustment shall act.
g.
The board of adjustment shall have the power to grant to the same extent, and subject to the same restrictions as the planning board, subdivision or site plan approval or conditional use approval pursuant to paragraph d of this section, whenever the proposed development requires approval by the board of adjustment of a variance pursuant to section 17-53d of this chapter. The developer may elect to submit a separate application requesting approval of a variance and a subsequent application for any required approval of a 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 impairment of the intent and purpose of the zone plan and zoning ordinance. The number of votes of board members required to grant any such subsequent approval shall be otherwise provided in this chapter for the approval in question, and the special vote pursuant to the aforesaid section 17-53d of this chapter shall not be required.
h.
Time Periods. The board of adjustment shall render its decision not later than 120 days after the date (1) an appeal is taken from the decision of an administrative officer or (2) submission of a completed application for development.
Whenever an application for development requests relief pursuant to paragraph g 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 township administrator or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise provided in this chapter. Failure of the board of adjustment to act within the period prescribed shall constitute approval of the application and a certificate of the township administrator 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 accepted by the county recording officer for purposes of filing subdivision plats.
i.
Lapse of Variances. Any zoning variance which involves activities requiring a building permit shall lapse and be of no effect two years from the date of approval of the variance unless such a building permit has been issued, except that the board of adjustment may extend such period for an additional period or periods not exceeding one year each.
j.
Procedure for Appeals and Applications to Board of Adjustment.
1.
Appeals to the board of adjustment may be taken by any interested party affected by any decision of an administrative officer of the township based on or made in the enforcement of the zoning ordinance or official map. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken 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.
2.
A developer may file an application for development with the board of adjustment for action under any of its powers without prior application to an administrative officer.
k.
Time for Decision.
1.
The board of adjustment shall render a decision not later than 120 days after the date (1) an appeal is taken from decision of an administrative officer or (2) the submission of a complete application for development to the board of adjustment.
2.
Failure of the board to render a decision within such 120-day period or within such further time as may be consented to by the applicant, shall constitute a decision favorable to the applicant.
l.
Modification on Appeal. The board of adjustment may take action on appeal as provided in N.J.S.A. 40:55D-74.
m.
Stay of Proceedings by Appeal; Exception. An appeal to the board of adjustment shall stay all proceedings as provided in N.J.S.A. 40:55D-75, except as provided therein.
§ 17-54 HEARINGS. [1]
§ 17-54.1 Planning Board or Zoning Board of Adjustment to Hold.
§ 17-54.2 Rules, Documents to Be Provided.
The planning board and the zoning board of adjustment shall make their own rules governing such hearings consistent with this chapter and other provisions of law. 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 township administrator. The applicant may produce other documents, records, or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.
§ 17-54.3 Powers of Presiding Officer.
The officer presiding at the hearing or such person as he may designate shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and production of relevant evidence including witnesses and documents presented by the parties, and the provisions of the "County and Municipal Investigations Law," P.S. 1953, c. 38 (C. 2A:67A-1 et seq.) shall apply.
§ 17-54.4 Testimony of Witnesses.
The testimony of all witnesses shall be taken under oath or affirmation by the presiding officer, 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 to reasonable limitations as to time and number of witnesses.
§ 17-54.5 Types of Evidence.
Technical rules of evidence shall not be applicable to the hearing, but the presiding officer may exclude irrelevant, immaterial or unduly repetitious evidence.
§ 17-54.6 Transcript of Hearing.
The board shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The board shall furnish a transcript, or duplicate recording in lieu thereof, on request to any interested party at his expense.
The transcript cost will not exceed the maximum permitted in N.J.S.A. 2A:11-15 (currently $0.40 for each folio of original, $0.10 for each copy). A deposit representing an estimate of the cost of such transcript shall be paid prior to its preparation.
§ 17-54.7 Findings.
The municipal agency shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing. The municipal agency shall provide the findings and conclusions through:
a.
A resolution adopted at a meeting held within the time period provided in the act for action by the municipal agency on the application for development; or
b.
A memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the municipal agency voted to grant or deny approval. Only the members of the municipal agency 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 sections 17-189c or 17-206 (resulting from the failure of a motion to approve 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. The vote on any such resolution shall be deemed to be a memorialization of the action of the municipal agency and not to be an action of the municipal agency; however, the date of the adoption of the resolution shall constitute the date of the decision for the purposes of the mailings, filings and publications required by this section. If the municipal agency 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 municipal agency to reduce its findings and conclusions to writing within a stated time and the cost of the application, including the attorney's fee, shall be assessed against the municipality.
§ 17-54.8 Decision.
A copy of the decision shall be mailed by the board within 10 days of the date of decision to the applicant, or if represented then to his attorney, without separate charge, and to all who request a copy of the decision for a reasonable fee. A copy of the decision shall also be filed by the board in the office of the township administrator. The township administrator shall make a copy of such filed decision available to any interested party for a reasonable fee and available for public inspection at his office during reasonable hours.
§ 17-54.9 Notice of Decision.
A brief notice of the decision shall be published in the official newspaper of the township or a newspaper of general circulation in the township. Such publication shall be performed by the township administrator within 10 days of the date of the decision.
The township may make a reasonable charge for its publication. The period of time in which an appeal of the decision may be made shall run from the first publication of the decision, whether arranged by the township or the applicant.
§ 17-55 NOTICE OF HEARING.
[Ord. #528; Ord. #566-80]
a.
Applicant shall be responsible for giving notice under paragraphs a, b, c, e, f, g, and h hereof at least 10 days prior to the date of the hearing as provided in this section. Each notice shall state the date, time and place of the hearing, the nature of the matters to be considered, an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor's office, and the location and times at which any maps and documents for which approval is sought are available for public inspection.
b.
Public notice shall be given, by publication in the official newspaper of the township or in a newspaper of general circulation in the township for a hearing on any application for development except regular site plan review, minor subdivisions for which a hearing is waived or for final approval of a major subdivision. Such public notice shall also be given for a hearing which involves a site plan or subdivision and also involves a request that the planning board grant a variance or direct the issuance of a permit for a building in the bed of a mapped street or other specified area or direct the issuance of a permit for a building not related to a street, pursuant to section 17-31, and in such cases the public notice shall include references to the subdivision or site plan as well as to the variance or other relief sought.
c.
Notice of a hearing requiring public notice pursuant to paragraph b of this section shall be given to the owners of all real property as shown on the current tax duplicate located in the State and within 200 feet of all directions of the property which is the subject of such hearing; provided that this requirement shall be deemed satisfied by notice to the (1) condominium association, in the case of any unit owner whose unit has a unit above or below it, or (2) horizontal property regime in the case of any co-owner whose apartment has an apartment above or below it. Notice shall be given by: (1) serving a copy thereof on the property owner as shown on the current tax duplicate, or his agent in charge of the property, or (2) mailing a copy thereof by certified mail to the property owner at his address as shown on the current tax duplicate.
Notice to a partnership owner may be made by service upon any partner. 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. 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.
d.
Upon the written request of an applicant, and payment of the fee as set forth in Chapter 10, "Fees and Permits" of the Revised General Ordinances of the Township of Hopewell (1978), the township administrator shall, within seven days, make and certify a list from the current tax duplicates of names and addresses of owners to whom the applicant is required to give notice pursuant to subsection 17-56.2. The applicant shall be entitled to rely upon the information contained in such list, and failure to give notice to any owner not on the list shall not invalidate any hearing or proceeding.
e.
Notice of hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the clerk of such municipality. All required notices shall be given by the applicant.
f.
Notice shall be given by personal service or certified mail to the county planning board of a hearing on an application for development of property adjacent to an existing county road or proposed road shown on the official county map or on the county master plan, adjoining other county land or situated within 200 feet of a municipal boundary.
g.
Notice shall be given by personal service or certified mail to the commissioner of transportation of a hearing on an application for development of property adjacent to a State highway.
h.
Notice shall be given by personal service or certified mail to the director of the Division of State and Regional Planning in the Department of Community Affairs of a hearing on an application for development of property which exceeds 150 acres or 500 dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the township administrator pursuant to subsection 17-56.2.
i.
The applicant shall file an affidavit of proof of service with the board holding the hearing on the application for development in the event that the applicant is required to give notice pursuant to this section. Any notice made by certified mail shall be deemed complete upon mailing.
j.
The planning board may waive notice and public hearing for an application for development if the planning board or site plan subcommittee of the board appointed by the chairman finds that the application for development conforms to the definition of a "minor site plan." Minor site plan approval shall be deemed to be final approval of the site plan by the board, provided that the board or the subcommittee may condition such approval on terms insuring the provision of improvements.
k.
Notice pursuant to paragraphs e, f, g, and h of this section shall not be deemed to be required, unless public notice pursuant to paragraph a and notice pursuant to paragraph c of this section are required.
§ 17-56 CONDITIONAL USES. [1]
§ 17-56.1 Time Limit.
The planning board shall grant or deny an application for a conditional use within 95 days of submission of a complete application to the township administrator, or within such further time as may be consented to by the applicant. The review of a new or expanded conditional use shall include any required site plan review. Failure of the planning board to act within the period prescribed shall constitute approval of the application and a certificate of the township administrator as to the failure of the planning board 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 county recording officer for purposes of filing subdivision plats.
§ 17-56.2 Approval.
In approving a conditional use, a time limit of two years from the date of the approval shall be set within which time the owner shall secure a building permit, otherwise, the approval shall be null and void. In this two-year period, no conditions of the approval and no zoning changes shall affect the approval. The planning board may for good cause shown extend the period for securing a building permit for an additional period not exceeding one year, but not to exceed three extensions.
§ 17-56.3 Review of Application.
In reviewing the conditional use application, the planning board shall exercise reasonable judgment in approving, denying, or approving with conditions the application, it being recognized that the imposition of conditions or the denial of an application are within the board's authority provided its conclusions are based on findings of fact as applied against the various zoning, planning and design standards set forth in this chapter and the adopted master plan. The board shall review the number of employees, customers or users of the property, that the use will not cause congestion or other unsafe conditions on any street, and shall be satisfied the applicant has complied with all reasonable elements which would affect the public health, welfare, safety, comfort, and convenience such as, but not limited to, the proposed use related to the character of the area, compatibility with other land uses in the area, the environmental impacts on the site and surrounding area, vehicular travel patterns highway access, traffic accident patterns, pedestrian ways, landscaping, lighting, signs, drainage, sewage treatment, potable water supply, utilities, and structural location(s) and orientation(s). Each conditional use shall be considered as an individual case. In all requests for approval of conditional uses, the burden of proof shall be on the applicant.
§ 17-57 VOTING ELIGIBILITY.
[Ord. #662-84, § 1]
A member of the municipal agency who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on the 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 the transcript or recording of all of the hearing from which he was absent, and certifies in writing to the board that he has read such transcript or listened to such recording.
§ 17-58 WHEN APPLICATION FOR DEVELOPMENT DEEMED COMPLETE; WAIVER OF DEFECTS. [1]
[Ord. #662-84]
An application for development shall be complete for purposes of commencing the applicable time period for action by a municipal agency when so certified by the municipal agency or its authorized committee or designee. In the event that the agency, committee or designee 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:
a.
The application lacks information indicated on a checklist adopted by ordinance and provided to the applicant; and
b.
The municipal agency or its authorized committee or designee 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 agency or its authorized committee 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 is entitled to approval of the application. The municipal agency may subsequently require correction of any information found to be in error and submission of additional information not specified in the ordinance of 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.
[1]
Editor's Note: See Appendix A, included as an attachment to this chapter, for application checklists.
§ 17-59 SIMULTANEOUS REVIEW OF SEPARATE ACCOUNTS.
[Ord. #723-86, § 4]
a.
The approving authority shall have the power to act upon subdivisions, conditional uses or site plans simultaneously without the developer's making further application, or the approving authority being required to hold further hearings. The longest time period for action by the approving authority, whether it be for subdivision, conditional use or site plan approval, shall apply. Whenever approval of a conditional use is requested by the developer in conjunction with a site plan or subdivision, notice of the hearing on the plat shall include reference to the request for such conditional use. See section 17-56, Conditional Uses.
b.
The developer may elect to submit a separate application requesting approval of the variance or direction of the issuance of a permit followed by 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(s) 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. In the event that the developer elects to submit separate consecutive applications, the required time for action by the approving authority shall apply to the application for approval of the variance or direction for issuance of a permit. The period for granting or denying subsequent approval(s) of a subdivision, site plan, or conditional use shall be as otherwise provided in this chapter for that separate application.