Lower Township City Zoning Code
ARTICLE VIII
Zoning Board of Adjustment and Planning Board
§ 400-67 Board of Adjustment established.
[Amended by Ord. No. 82-2]
A.
The Zoning Board of Adjustment heretofore created is continued and is hereby established pursuant to the Municipal Land Use Law as the Board of Adjustment for the municipality. It shall consist of seven members and four alternates who shall be residents of the Township and shall be appointed by the governing body, by resolution, for terms of four years, each computed from January 1 of the year of their appointment, except full terms filled for the first time under this section shall be so fixed (for four or fewer years) and so arranged that, to the greatest practicable extent, the expiration of all terms will be distributed evenly over the first four years after the initial appointment. The terms of the alternate members shall be two years, with no more than two alternate members' terms expiring in the same year.
[Amended 3-19-2007 by Ord. No. 2007-02]
B.
No member of the Zoning Board of Adjustment shall hold any elective position under the municipality.
C.
Any vacancy on said Board, occurring other than by expiration of term, shall be filled by appointment by the governing body, by resolution, to serve for the unexpired term of the member whose term shall become vacant. A member may be removed by the governing body for cause, but only after public hearing, if requested and other requested procedural due process protections.
D.
Yearly, the Board of Adjustment shall organize by selecting from among its regular members a Chairman and Vice Chairman. The Board shall also select a Secretary who may or may not be a member of the Board or a municipal employee.
E.
The governing body shall make provisions in its budget and appropriate funds for the expenses of the Board of Adjustment.
F.
The office of Board of Adjustment Attorney is hereby created. The Board of Adjustment may annually appoint to such office and fix compensation or rate of compensation of an attorney at law of New Jersey other than the Municipal Attorney.
G.
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. The Board shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
H.
The Board of Adjustment shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter.
§ 400-68 Board of Adjustment powers and jurisdiction.
The Board of Adjustment shall have the power to:
A.
Error or refusal. 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.
B.
Exceptions or interpretations. 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 the Board is authorized to pass by this chapter or the Official Map.
C.
Variance of area or yard requirements. 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 situation or condition of such piece of property, the strict application of any regulation 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 an appeal relating to such property, a variance from such strict application of such regulation so as to relieve any difficulties or hardships; 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 which the Planning Board shall review a request for a variance pursuant to this chapter.
D.
Variance of use regulations. 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 affirmative vote of at least 2/3 of the full authorized membership of the Board.
E.
General provisions. 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. Any application to the Board of Adjustment under 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.
F.
Other powers. The Board of Adjustment shall have such other powers as prescribed by law, including but not limited to the following:
(1)
Direct issuance of a building permit for the construction of a building or structure within the bed of a mapped street or public drainageway, flood control basin or public area as shown on a duly adopted Official Map Ordinance of the municipality whenever one or more parcels of land within said bed cannot yield a reasonable return to the owner unless a building permit is granted. The Board shall impose reasonable requirements as a condition of granting the building permit so as to promote the health, morals, safety and general welfare of the public.
(2)
Direct issuance of a building permit for the construction of a building or structure on a lot not abutting a street which is shown on a duly adopted Official Map of the municipality or which is (a) an existing state, county or municipal street or highway; or (b) a street shown upon a plat approved by the municipal Planning Board; or (c) a street on a plat duly filed in the office of the county recording officer. The Board may grant such relief only where the enforcement of the statute requirement that a building lot abut a street would entail practical difficulty or unnecessary hardship, or where the circumstances of the case do not require the building or structure to abut a street. The Board shall impose requirements of conditions that will provide adequate access for fire-fighting equipment, ambulances and other emergency vehicles necessary for the protection of the health and safety and will protect any future street layout shown on the Official Map or on the general circulation plan element of the municipal Master Plan.
(3)
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 whenever the Board of Adjustment is reviewing an application for approval of a variance pursuant to § 400-68D of this chapter.
§ 400-69 Appeals and applications to Board of Adjustment.
[Amended by Ord. No. 89-3; Ord. No. 93-23; Ord. No. 2002-15]
A.
Appeals to the Board of Adjustment may be taken by an interested party affected by any decision of an 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 officer from whom the appeal is taken specifying the grounds of such appeal. Twelve copies of the notice shall simultaneously be filed with the Secretary of the Board of Adjustment. 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.
B.
Regulations governing application for development. The following items are to be submitted simultaneously to the Secretary of the Board of Adjustment, at least 15 days prior to the date of the public hearing. (In the case of a variance application submitted in conjunction with a subdivision or site plan application, submission is to be made 21 days prior to the date of the hearing.)
(1)
Applicant shall be required to submit one current, dated, sealed survey that accurately reflects the conditions on the site, prepared by a licensed land surveyor of New Jersey. In addition to the required sealed survey, the applicant shall submit 20 copies of a sketch showing all existing and proposed structures, including dimensions and setbacks.
[Amended 5-3-2004 by Ord. No. 2004-11]
(2)
Twenty copies of the application for development form, with all pertinent information filled in, and signed by the applicant.
[Amended 5-3-2004 by Ord. No. 2004-11]
(3)
Appropriate fees.
(4)
A receipt from the tax office.
(5)
A corporate disclosure statement, if appropriate.
(6)
A signed statement of the cost of construction.
(7)
Proof of standing to submit the application.
(8)
A resolution from the condominium association and a proposed amendment to the master deed.
C.
The Board of Adjustment shall render a decision not later than 120 days after the date that:
(1)
An appeal is taken from the decision of an officer of the municipality; or
(2)
A complete application for development is submitted to the Board by a developer. 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.
D.
Any 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 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.
E.
In acting on any appeal, 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 officer from whom the appeal is taken.
§ 400-70 Planning Board established.
[Amended by Ord. No. 88-20]
A.
A Planning Board is hereby established consisting of nine members of the following classes plus two alternates:
(1)
Class I: the mayor, or pursuant to N.J.S.A. 40:55D-23(a), the Mayor may consent in writing to permit the Township Manager to sit on the Planning Board as his replacement.
(2)
Class II: one of the officials of the municipality, other than a member of the governing body, to be appointed by the Mayor; provided that, if there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall be deemed to be the Class II Planning Board member if there is both a member of the Zoning Board of Adjustment and a member of the Board of Education among the Class IV members.
(3)
Class III: member of Council.
(4)
Class IV: six other citizens of the municipality to be appointed by the Township Council. The member of Class IV shall hold no other municipal office, except that one member may be a member of the Zoning Board of Adjustment and one may be a member of the Board of Education. A member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall be a Class IV Planning Board member unless there be among the Class IV members of the Planning Board both a member of the Zoning Board of Adjustment and a member of the Board of Education, in which case the member of the Environmental Commission shall be deemed to be the Class II member of the Planning Board. Alternate members shall be appointed by the Mayor for Class IV members and shall meet the qualification of Class IV members.
B.
The term of the member composing Class I shall correspond with his official tenure. The terms of the members composing Class II shall be for one year or terminate at the completion of their respective term of office, whichever occurs first, except a Class II member who is also a member of the Environmental Commission shall be for three years or terminate at the completion of his term of office as a member of the Environmental Commission, whichever comes first. The term of the Class III member shall be for one year.
C.
The term of a Class IV member who is also a member of the Board of Adjustment or the Board of Education shall terminate whenever he is no longer a member of such body or at the completion of his Class IV term, whichever comes first.
D.
The terms of all Class IV members first appointed pursuant to this chapter shall be so determined that, to the greatest practicable extent, the expiration of such term shall be evenly distributed over the first four years after their appointment and as determined by resolution of the governing body; provided, however, that no term of any member shall exceed four years and further provided that nothing herein shall affect the term of any present member of the Planning Board, all of whom shall continue in office until the completion of the terms of four years except as otherwise herein provided. All terms shall run from January 1 of the year in which the appointment was made.
(1)
The term of the alternate members shall not exceed two years.
E.
If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment as above provided for the unexpired term. A member may be removed by the governing body but only after a public hearing if requested and other requested procedural due process protections.
F.
The Planning Board shall elect a Chairman and Vice Chairman from the members of Class IV and select a Secretary who may be either a member of the Planning Board or a municipal employee designated by it.
G.
The Planning Board may also employ or contract to 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 governing body for its use.
H.
The Planning Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter.
§ 400-71 Planning Board powers and jurisdiction.
[Amended by Ord. No. 89-3]
A.
The Planning Board shall have the powers listed below in addition to other powers established by law:
(1)
Make, adopt, and from time to time amend a Master Plan for the physical development of the Township, including any areas outside its boundaries which, in the Board's judgment, bear essential relation to the planning of the Township.
(2)
Administer the provisions of this chapter.
(3)
Participate in the preparation and review of programs or plans required by state or federal law or regulation.
(4)
Assemble data on a continuing basis as part of a continuous planning process.
(5)
Annually prepare a program of municipal capital improvements projects projected over a term of six years and amendments thereto and recommend same to the governing body.
(6)
Consider and issue a report to the governing body within 35 days after referral as to any proposed development regulation submitted to it and also pass upon other matters specifically referred to the Planning Board by the governing body.
B.
The Planning Board shall have such other powers as prescribed by law, including, but not limited to, the power to grant the following variances, to the same extent and subject to the same restrictions as the Zoning Board of Adjustment, when the Planning Board is reviewing applications for approval of subdivision plans, site plans or conditional uses:
(2)
Direction pursuant to § 400-68F(1) of this chapter for issuance of a permit for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area; and
(3)
Direction pursuant to § 400-68F(2) of this chapter for issuance of a permit for a building or structure on a lot not abutting a street.
§ 400-72 Provisions applicable to both the Planning Board and Zoning Board of Adjustment.
[Amended by Ord. No. 82-2; Ord. No. 91-20]
A.
Conflicts of interest. No member of the Planning Board or Zoning Board of Adjustment shall act on any matter in which he has either directly or indirectly any personal or financial interest. Whenever any such member shall disqualify himself from acting on a particular matter, he shall not continue to sit with the Board on the hearing of such matter nor participate in any discussion or decision relating thereto.
B.
Meetings.
(1)
Meetings of both the Planning Board and Zoning Board of Adjustment shall be scheduled no less often than once a month, and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process.
(2)
Special meetings may be provided for at the call of the Chairman or on the request of any two Board members, which shall be held on notice to its members and the public in accordance with all applicable legal requirements.
(3)
No action shall be taken at any meeting without a quorum being present, said quorum to be the majority of the full authorized membership of the Board.
(4)
All actions shall be taken by majority vote of a quorum except as otherwise required by a provision of N.J.S.A. 40:55D-1 et seq.
C.
Records.
(1)
Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Planning Board or the Zoning Board of Adjustment, and of the persons appearing by attorney, the action taken by the Planning or Zoning Board, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection during the normal business hours at the office of the land use official. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes.
(2)
A verbatim recording shall be made of every hearing. The recording of the proceedings shall be made by either stenographer, mechanical or electronic means. The municipality shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense.
D.
Public hearings.
(1)
The Planning Board or Zoning Board of Adjustment, as the case may be, shall hold a hearing on each application for development. Each Board shall make the rules governing such hearings.
(2)
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 land use official. The applicant may produce other documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.
(3)
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 the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the "County and Municipal Investigations Law," P.L. 1953, c. 38 (N.J.S.A. 2A:67A-1 et seq.) shall apply.
(4)
The testimony of all witnesses relating to an application for development 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.
(5)
Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.
E.
Public notice of a hearing.
(1)
Public notice of a hearing shall be given for the following applications for development:
(a)
Any request for a variance pursuant to N.J.S.A. 40:55-D-70(a), (b), (c), or (d).
(b)
Any request for conditional use approval;
(c)
Any request for the issuance of a permit to build within the bed of a mapped street or public drainageway or on a lot not abutting a street [see § 400-68F(1) and (2)];
(d)
Any request for site plan and/or minor subdivision approval involving one or more of the aforesaid elements;
(e)
Any request for preliminary approval of a major subdivision; and
(f)
Any request for final approval of a major subdivision.
(2)
Notice of a hearing requiring public notice shall be given by the applicant at least 10 days prior to the date of the hearing in the following manner:
(a)
By publication in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality in the absence of an official newspaper.
(b)
To all owners of real property as shown on the current tax duplicate located within 200 feet in all directions of the property which is the subject of the hearing, which notice shall be given by serving a copy thereof on the property owner, as shown on the current tax duplicate, or his agent in charge of the property; or by mailing a copy thereof by certified return receipt mail to the property owner at his address as shown on the said current tax duplicate. It is required that a return receipt be obtained.
(c)
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.
(d)
To the Clerk of any adjoining municipality or municipalities when the property involved is located within 200 feet of said adjoining municipality or municipalities, which notice shall be given by personal service or certified return receipt mail.
(e)
To the County Planning Board when the application for development involves property adjacent to an existing county road or proposed road shown on the County Official Map or the County Master Plan or adjoins other county land.
(f)
To the Commissioner of Transportation of the State of New Jersey when the property abuts a state highway.
(g)
To the Director of the Division of State and Regional Planning in the Department of Community Affairs when the hearing involves an application for development of property which exceeds 150 acres or 500 dwelling units, in which case the notice shall include a copy of any maps or documents required to be on file with the administrative officer.
(3)
Upon the written request of an applicant, the Township Assessor shall, within seven days, make and certify a list from said current tax duplicate of the names and addresses of owners within the Township to whom the applicant is required to give notice. The applicant shall be charged $10 for said list and 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. Additionally, the applicant shall be responsible for giving proper notice to all property owners pursuant to Subsection E(2)(b) above who do not reside within the Township.
(4)
The applicant shall file an affidavit of proof of service with the Planning Board or Zoning Board of Adjustment, as the case may be.
(5)
The notice shall state the date, time and place of the hearing and the nature of the matters to be considered, and an identification of the property proposed for development by street address, if any, and 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 or documents for which approval is sought are available for inspection.
F.
Expiration of variance. Any variance from the terms of this chapter hereafter granted by the Board of Adjustment or Planning Board 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 the variance, or unless such permitted use has actually been commenced within three years from the date of publication of the notice of the judgment or determination of the 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 Board of Adjustment to the Township Committee, or to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding, and further except that variance granted in conjunction with site plan or major subdivision approval shall run in conjunction with that approval pursuant to the Municipal Land Use Law.[2]
[2]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
G.
No extensions of a three-year variance approval shall be granted, except that a variance granted in conjunction with a site plan or major subdivision approval shall run in conjunction with that approval, including any extensions granted by the Board, pursuant to the Municipal Land Use Law. Expiration of a three-year variance approval shall require a new formal variance application.
§ 400-73 Appeal of use variance approvals.
A.
Any interested party who entered an appearance before the Zoning Board of Adjustment and stated his position subject to cross-examination regarding a use variance [N.J.S.A. 40:55D-70(b)] request may appeal an approval of the variance to the governing body.
B.
Such appeal shall be made within 10 days of the date of publication of such final decision pursuant to § 400-74 of this chapter. The appeal to the governing body shall be made by serving the Township Clerk in person or by certified mail with a notice of appeal specifying the grounds thereof and the name and address of the appellant and name and address of his attorney, if represented. Such appeal shall be decided by the governing body only upon the record established before the Zoning Board of Adjustment. The appellant shall arrange for five copies of the transcript to be delivered to the Township Clerk for use by the governing body.
C.
Notice of the meeting of the governing body to review the record below shall be given by the governing body by personal service or certified mail to the appellant, to those entitled to notice of a decision pursuant to § 400-74 of this chapter, and to the Zoning Board Adjustment at least 10 days prior to the date of the meeting. The parties may submit oral and written arguments on the record at such meeting, and the governing body shall provide for verbatim recording or transcripts of such meeting.
D.
The governing body shall conclude a review of the record below not later than 45 days from the date of receipt of the transcript of the hearing unless the appellant consents in writing to an extension of such period. Failure of the governing body to hold a hearing and conclude a review of the record below and to render a decision within such specified period without such written consent of the appellant shall constitute a decision affirming the action of the Zoning Board of Adjustment.
E.
The governing body may reverse, remand or affirm, wholly or in part, or may modify the final decision of the Zoning Board of Adjustment. The affirmative vote of the majority of the full authorized membership of the governing body shall be necessary to reverse, remand or modify any final action of the Board.
§ 400-74 Notice of decisions.
Any decision of the Planning Board or Zoning Board of Adjustment when acting upon an application for development and any decisions of the governing body when acting upon an appeal shall be given notice in the following manner:
A.
A copy of the decision shall be mailed by the Board within 10 days of the date of decision to the applicant or appellant, or, if represented, then to his attorney, without separate charge. A copy of the decision shall also be mailed to any interested party who has requested it and who has paid the fee prescribed by the Board for such service.
B.
A brief notice of every final decision shall be published in the official newspaper of the Township. Such publication shall be arranged by the Secretary of the Planning Board or Zoning Board of Adjustment, as the case may be, without separate charge to the applicant. The notice shall be sent to the official newspaper for publication within 10 days of the date of any such decision.
C.
A copy of the decision shall also be filed in the office of the land use official who shall make a copy of such filed decision available to any interested party upon payment of a fee calculated in the same manner as those established for copies of other public documents in the Township.