Montgomery City Zoning Code
§ 16-7.2
Powers and Jurisdiction of the Zoning Board of Adjustment.
[Ord. #85-482, S 702; Ord. #86-528, S 1]
The Zoning Board of Adjustment shall have the power to:
a.
Error or Refusal. Hear and decide appeals where it is alleged by the applicant that there is an error in any order, requirement, decision or refusal made by a Township official based on or made in the enforcement of the zoning provisions of this chapter.
b.
Exceptions or Interpretations. Hear and decide requests for interpretation of the Zoning Map or the zoning provisions of this chapter or for decisions upon other special questions upon which the Board is authorized to pass by any zoning provisions of this chapter or by any duly adopted Official Map.
c.
General Bulk Variances.
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 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 such difficulties or hardship;
2.
Where, in an application or appeal relating to a specific piece of property the purposes of this chapter would be advanced by a deviation from the zoning requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from such zoning requirements; provided, however, that no variance from those departures enumerated in Subsection 16-7.2d hereinbelow (N.J.S.A. 40:55D-70[d]) 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 Subsection 16-7.5h of this chapter. (N.J.S.A. 40:55D-60[a]).
d.
Use Variance, Variances from Conditional Use Standards, and Major Specific Bulk Variances. In particular cases and for special reasons, grant a variance to allow departure from the zoning provisions of this chapter 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 particular specification or standard set forth in this chapter as pertaining solely to a conditional use; (4) an increase in the permitted floor area ratio as defined in section 16-2 of this chapter and in N.J.S.A. 40:55D-4; (5) an increase in the permitted density as defined in section 16-4 or section 16-6 of this chapter, as the case may be, and 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, in which event applications would be made pursuant to Subsection 16-7.2c hereinabove. A variance under this subsection shall be granted only by affirmative vote of at least five members of the Board.
A variance under this subsection shall expire if no construction, alteration or conversion relative to the nonconforming use has been commenced within one year of the date of the Board's decision to grant the variance. For variances granted prior to the effective date of this subsection, the one year period shall commence as of the effective date of this subsection. For variances which become the subject of litigation, the one year period shall commence on the date of the last reviewing court's decision to grant the variance. For good cause shown, and after a hearing before the Board on notice in the manner required for original variance applications, the Board may extend the variance by resolution. Any extension may not exceed one year in duration and no more than four extensions shall be permitted. To receive consideration, an application for extension of a variance shall be made prior to the expiration of the time limit sought to be extended.
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 the zoning provisions of this chapter. In respect of 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, other than 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 Zoning Board of Adjustment shall have such other powers as prescribed by law, including, but not limited to, the following:
1.
Direct issuance of a construction permit pursuant to N.J.S.A. 40:55D-34 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 of the municipality whenever one or more parcels of land within said bed cannot yield a reasonable return to the owner unless a construction permit is granted. The Board may grant such relief only by affirmative vote of a majority of the full authorized membership of the Zoning Board of Adjustment, ensuring that such relief will tend to cause a minimum change of the Official Map and will not significantly add to the cost of opening any proposed street. The Board shall impose reasonable requirements as a condition of granting the construction permit so as to promote the health, morals, safety and general welfare of the public.
2.
Direct issuance of a construction permit pursuant to N.J.S.A. 40:55D-36 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 when 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 or conditions that will provide adequate access for fire fighting equipment, ambulances and other necessary emergency vehicles for the protection of the health and safety and that will protect any future street layout on the Official Map or on the general circulation plan element of the municipal Master Plan.
3.
The Zoning Board of Adjustment shall have the power to grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision, site plan or conditional use approval whenever the proposed development requires approval by the Zoning Board of Adjustment of a variance pursuant to Subsection 16-7.2d of this chapter. The developer may elect to submit a separate application requesting approval of the 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 a grant of all required subsequent approvals by the Zoning Board of Adjustment. No such subsequent approval shall be granted unless such 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 the zoning provisions of this chapter. The number of votes of Board members required to grant such subsequent approval shall be as otherwise provided in this chapter for the approval in question, and the special vote pursuant to Subsection 16-7.2d of this chapter shall not be required.