Lacey Township City Zoning Code
ARTICLE XIII
Board of Adjustment
§ 335-83 Establishment.
Pursuant to the provisions of N.J.S.A. 40:55D-1 et seq., the Municipal Land Use Law, a Zoning Board of Adjustment, which shall consist of seven members, is hereby established.
§ 335-84 Membership; officers; expenditures.
[Amended 6-5-1980 by Ord. No. 10-80]
A.
Membership; officers.
[Amended 3-26-1992 by Ord. No. 92-18]
(1)
The members of the Zoning Board of Adjustment shall be appointed by the Mayor, with the advice and consent of the Township Committee, to serve for terms of four years from January 1 of the year of their appointment. The terms of the members first appointed shall be so determined that to the greatest practical extent the expiration of such terms shall be distributed evenly over the first four years after their appointment, provided that the initial term of no member shall exceed four years. No member may hold any elective office or position under the municipality. A vacancy occurring by expiration of term shall be filled for the unexpired term only. The Board of Adjustment shall, at its annual reorganization meeting, 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.
(2)
There are hereby created the positions of two alternate members of the Board of Adjustment. Said alternate members shall be appointed by the Mayor, with the advice and consent of the Township Committee, and shall be designated as "Alternate No. 1" and "Alternate No. 2." The terms of the alternate members shall be for two years. 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.
B.
There is hereby created the office of Attorney to the Zoning Board of Adjustment, who shall be an attorney other than the Municipal Attorney. The 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.
C.
The Board shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
§ 335-85 Powers and duties.
A.
The Board of Adjustment is authorized to adopt bylaws governing its procedural operation. It shall, in addition to those powers set forth in N.J.S.A. 40:55D-1 et seq., also have the following powers and duties:
[Amended 3-26-1992 by Ord. No. 92-18]
(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 an administrative officer based on or made in the enforcement of this chapter or the Official Map.
(2)
Hear and decide requests for interpretation of the Zoning Map[1] or this chapter or for decisions upon other special questions upon which such Board is authorized to pass by this chapter or the Official Map.
[1]
Editor's Note: A copy of the Zoning Map is included in the pocket at the end of this volume.
(3)
Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property or by reason of exceptional topographical 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 in this chapter will 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. Where in an application or appeal relating to a specific piece of property the purposes of the Municipal Land Use Law would be advanced by a deviation from this chapter's requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to this chapter; provided, however, that no variance from those departures enumerated in Subsection A(4) of this section shall be granted under this subsection; and provided further that the proposed development does not require approval of the Planning Board of a subdivision, site plan or conditional use in conjunction with Planning Board review of a variance pursuant to N.J.S.A. 40:55D-60a.
(4)
In particular cases and for special reasons, grant a variance to allow departure from this chapter to permit:
(a)
A use or principal structure in a district restricted against such use or principal structure.
(b)
An expansion of a nonconforming use.
(c)
Deviation from a specification or standard of a conditional use which specification or standard pertains solely to a conditional use.
(d)
An increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4.
(e)
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. A variance under this subsection shall be granted only by the affirmative vote of at least five members of the Board.
B.
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 this chapter. Any application under any subsection of this section may be referred to any appropriate person or agency, including 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.
[Amended 3-26-1992 by Ord. No. 92-18]
C.
Any variances granted within the Pinelands Area which permit a use or structure in a district otherwise restricted against such structure or use or which vary the application of any development standard in this chapter adopted pursuant to the Pinelands Comprehensive Management Plan, N.J.A.C. 7:50-1 et seq., shall not relieve the applicant from also receiving a waiver of strict compliance from the Pinelands Commission.
[Added 2-14-1991 by Ord. No. 5-91]
D.
Any municipal variance approval which grants relief from the density or lot area requirements set forth in Table 1, Minimum Lot Sizes,[2] for a residential or principal nonresidential use in the VR or VCR Zones shall require that pinelands development credits be used for all dwelling units or lots in excess of that permitted without the variance.
[Added 1-28-1993 by Ord. No. 92-5; amended 3-27-1997 by Ord. No. 97-14]
[2]
Editor's Note: Table 1 is included at the end of this chapter.
§ 335-86 Additional powers.
The Zoning Board of Adjustment shall, in addition to the powers specified in the foregoing § 335-85, have the power to:
A.
Direct issuance of a permit, pursuant to N.J.S.A. 40:55D-34, for building a structure in the bed of a mapped street or public drainageway, flood-control basin or public area reserved on the Official Map.
B.
Direct issuance of a permit, pursuant to N.J.S.A. 40:55D-36, for a building or structure not related to a street.
C.
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 et seq., or conditional use approval, pursuant to N.J.S.A. 40:55D-67, when there is an application before the Board of Adjustment for a special reasons variance, pursuant to N.J.S.A. 40:55D-70d. However, prior to any final action by the Board of Adjustment, said Board may, upon receipt of any application requesting subdivision, site plan or conditional use approval, forward a copy of said application, together with any relevant documents to the Planning Board Secretary for referral to the Planning Board. Such referral to the Planning Board shall not extend the time for action by the Board of Adjustment.
[Amended 3-26-1992 by Ord. No. 92-18]
§ 335-87 Appeals and applications.
A.
Appeals to the Board of Adjustment may be taken by any interested party affected by a decision of any administrative officer of the municipality based on or made in the enforcement of this chapter or the 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, specifying the grounds of such appeal. The officer from whom the appeal is taken shall immediately transmit to the Board all of the papers constituting the record upon which the action appealed from was taken.
[Amended 3-26-1992 by Ord. No. 92-18]
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 an administrative officer.
C.
The 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 the powers of the administrative officer from whom the appeal is taken.
D.
An appeal to the Board of Adjustment shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the officer from whose action 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 the facts stated in the certificate a stay would, in his opinion, cause immediate 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 upon due cause shown.
[Amended 3-26-1992 by Ord. No. 92-18]
E.
The submission requirements and technical checklist set forth in Table 5[1] are hereby adopted as the submission requirements and technical checklist for applications before the Zoning Board of Adjustment.
[Added 6-11-1992 by Ord. No. 43-92]
[1]
Editor's Note: Table 5 is included at the end of this chapter.
§ 335-88 Appeals to governing body.
Any interested party may appeal to the governing body any final decision of the Board of Adjustment approving an application for a special reasons variance granted pursuant to N.J.S.A. 40:55D-70 and § 335-85A(4) above. Any such appeal shall be pursuant to the provisions of N.J.S.A. 40:55D-17. Within the Pinelands Area, the procedures set forth in Article XVII of this chapter shall be followed.
§ 335-89 Time for decision.
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 administrative officer or the submission of a complete application for development to the Board of Adjustment.
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. A certificate of the Planning Board Coordinator as to the failure of the Board of Adjustment to act shall he issued on request of the applicant, and it shall be sufficient in lieu of a written endorsement or other evidence of approval, herein required, and shall be so accepted by the county recording officer for purposes of filing a subdivision plat when appropriate. Whenever review or approval of the application by the Ocean County Planning Board is required pursuant to law, the Municipal Board of Adjustment shall condition any approval that it grants upon timely receipt of a favorable report on the application by the Ocean County Planning Board or approval by its failure to report thereon within the required time.
[Amended 3-26-1992 by Ord. No. 92-18]
§ 335-90 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.
§ 335-91 Voting.
All actions of the Board of Adjustment shall be in accordance with the requirements as established in N.J.S.A. 40:55D-9a. When any hearing before the Board of Adjustment shall carry over two or more meetings, a member of the Board who was absent for one or more of the meetings 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 a transcript or a recording of the meeting from which he was absent and certifies in writing to the Board that he has read such transcript or listened to such recording.[1]
[1]
Editor's Note: Former § 108-68, entitled "Expiration of variance," which immediately followed this section, was repealed 8-26-1982 by Ord. No. 25-82. In addition, former Article XII, entitled "Fees," which immediately followed this article, was repealed 7-23-1987 by Ord. No. 33-87. For current provisions, see Ch. 211, Land Development Fees.
