Lodi City Zoning Code
ARTICLE VII
Board of Adjustment
§ 585-23 Establishment; composition; term.
A.
A Board of Adjustment is hereby established, pursuant to N.J.S.A. 40:55D-69 et seq., consisting of seven residents of the Borough appointed by the Mayor 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 practicable 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. Thereafter, the term of each member shall be for four years. Nothing in the chapter shall, however, be construed to affect the term of any present member of the Board of Adjustment, all of whom shall continue in office until the completion of the term for which they were appointed.
B.
No member of the Board of Adjustment may hold any elective office or position under the Borough.
C.
A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
§ 585-24 Officers.
The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary, who may or may not be a Board member or another Borough employee.
§ 585-25 Board of adjustment attorney.
There is hereby created the office of Attorney to the Board of Adjustment. The Board of Adjustment may annually appoint, fix the compensation of or agree upon the rate of compensation of the Board of Adjustment Attorney, who shall be an attorney other than the Borough Attorney.
§ 585-26 Experts and staff.
The Board of Adjustment may also employ or contact 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.
§ 585-27 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. In the issuance of subpoenas, administration of oaths and taking of testimony, the provisions of the County and Municipal Investigations Law of 1953, N.J.S.A. 2A:67A-1 et seq., shall apply.
§ 585-28 Powers of Zoning Board of Adjustment.
A.
Statutory powers. The powers of the Board of Adjustment shall be in accordance with N.J.S.A. 40:55D-69 et seq., and amendments and supplements thereto, and with the provisions of this chapter.
B.
Intent. It is further the intent of this chapter to confer upon the Board of Adjustment as full and complete powers as may lawfully be conferred upon such Board, including, not by way of limitation, the authority in connection with any case, action or proceeding before the Board to interpret and construe the provisions of this chapter or any term, clause, sentence or word hereof, and the Zoning Map, in accordance with the general rules of construction applicable to legislative enactments.
C.
Variances. The Board may grant variances from the terms of this chapter in accordance with the general or specific rules contained herein. The powers and duties of the Board having been delegated to and imposed upon it by statute, the Board shall in all cases follow the provisions applicable to it in N.J.S.A. 40:55D-1 et seq., or subsequent statutes in such case made and provided, and it shall from time to time furnish to any person requesting such a copy of its rules and information as to how appeals or applications may properly be filed with the Board for its decision thereon.
§ 585-29 Appeals and applications.
A.
Appeals. Appeals to the Board of Adjustment may be taken by any interested party. Each appeal shall be taken within the 20 days prescribed by the statute 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. Such notice of appeal shall specify the grounds for the appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
B.
Applications. Applications addressed to the original jurisdiction of the Board of Adjustment without prior application to an administrative officer shall be filed with the Secretary of the Zoning Board of Adjustment. Six copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than 10 days prior to the date set for hearing, the applicant shall also file all plot plans, maps, or other papers required by virtue of any provision of this chapter or any rule of the Board of Adjustment. The applicant shall obtain all necessary forms from the Secretary of the Board of Adjustment. The Secretary of the Board shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board.
C.
Stay of proceedings. 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/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 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.
§ 585-30 Power to reverse or modify decisions.
In exercising the above-mentioned powers, the Board of Adjustment may, in conformity with the provisions of N.J.S.A. 40:55D-1 et seq., or amendments thereto, or subsequent statutes applying, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and make such other requirement, decision or determination as ought to be made, and to that end have all the powers of the administrative officer from whom the appeal was taken.
§ 585-31 Expiration of variance.
Any variance from the terms of this chapter hereafter granted by the Board of Adjustment permitting the erection or alteration of any structure or structures or permitting a specified use of any premises shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by such variance or unless such permitted use has actually been commenced within one year from the date of publication of the notice of the judgment or determination of the Board of Adjustment; 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 Board of Adjustment to the Borough Council or to a court of competent jurisdiction until the termination in any manner of such appeal or proceeding.
§ 585-32 Powers granted by law.
The Board of Adjustment shall have such powers as are granted by law to:
A.
Appeals. 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.
Interpretation of map or chapter. Hear and decide requests for interpretation of the Zoning Map or this chapter or for decisions upon other special questions upon which such Board is authorized by the chapter to pass.
C.
"C" variance.
(1)
Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or by reason of other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation in this chapter would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner 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 chapter, as set forth in N.J.S.A. 40:55D-2, 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 of this chapter, provided, however, that no variance from those departures enumerated in Subsection D of this section shall be granted under this subsection; 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 § 63-8G of Chapter 63, Land Use Procedures, of this Code.
D.
"D" variance.
(1)
In particular cases and for special reasons, grant a variance to allow departure from regulations of 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 pursuant to § 585-12 of this chapter pertaining solely to a conditional use;
(d)
An increase in the permitted density as defined in § 585-2 of this chapter, 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 or undersized lot or lots resulting from a minor subdivision; or
(e)
A height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by affirmative vote of at least five members of the Board.
(3)
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 the purpose of the zone plan and this chapter. 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.
§ 585-33 Additional powers.
The Board of Adjustment shall, in addition to the powers specified in § 585-32, have power given by law to:
A.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-76a(1) for a building or 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-76a(2) for a building or structure not related to a street.
C.
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 Article 6 of Chapter 291, P.L. 1975, N.J.S.A. 40:55D-1 et seq., or conditional use approval pursuant to N.J.S.A. 40:55D-67, whenever the Board is reviewing an application for approval of a use variance pursuant to § 585-32 of this chapter.
§ 585-34 Time for decision.
A.
Time limit. The Board of Adjustment shall render its decision not later than 120 days after the date an appeal is taken from the decision of an administrative officer, or the submission of a complete application for development to the Board pursuant to the provisions of N.J.S.A. 40:55D-72b.
B.
Failure to render decision. 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.
§ 585-35 Board of adjustment fees.
An appeal or application to the Board of Adjustment shall be accompanied by a fee, as provided in Chapter 235, Article 1, Development Application Fee Schedule, payable to the Borough and turned over to the Borough Treasurer by the Secretary of the Board.