Stillwater Township
City Zoning Code
City Zoning Code
ARTICLE IV
Zoning Board of Adjustment
§ 240-19 Establishment; composition.
A.
A Zoning Board of Adjustment is hereby established, pursuant to N.J.S.A. 40:55D et seq., consisting of seven residents of the Township appointed by 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 practicable extent, the expiration of such terms shall be distributed evenly over the first four years after their appointment, provided that the initial terms of no member shall exceed four years. Thereafter, the term of each member shall be for four years. Nothing in this chapter, however, shall be construed to affect the term of any present members of the Zoning Board of Adjustment, all of whom shall continue in office until the completion of the term for which they were appointed.
B.
There shall be appointed to the Zoning Board of Adjustment two alternate members who are residents of the Township. Such alternate members shall be designated by the Chairman as "Alternate No. 1" and "Alternate 2" and shall serve in rotation during the absence or disqualification of any regular member or members. The term of each alternate member shall be for two years from January 1 of the year of their appointment; provided, however, that the initial terms of such alternate members shall be for one and two years, respectively. Alternate members shall be appointed by the same appointing authority as regular members. Alternate members may participate in all matters but may not vote except in the absence or disqualification of a regular member. Participation of alternate members shall not be deemed to increase the size of the Zoning Board of Adjustment established by ordinance. 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.
C.
No member of the Zoning Board of Adjustment may hold any elective office or position under the Township.
D.
A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
E.
If the Board of Adjustment lacks a quorum because any of its regular or alternate members is prohibited by N.J.S.A. 40:55D-69 from acting on a matter due to the member's personal or financial interest therein, Class IV members of the Planning Board shall be called upon to serve, for that matter only, as temporary members of the Board of Adjustment. The Class IV members of the Planning Board shall be called upon to serve in order of seniority of continuous service to the Planning Board until there are the minimum number of persons necessary to constitute a quorum to act upon the matter without any personal or financial interest therein, whether direct or indirect. If a choice has to be made between Class IV members of equal seniority, the Chairman of the Planning Board shall make the choice.
§ 240-20 Officers.
The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary who may be either a Board member or another Township employee.
§ 240-21 Board of Adjustment Attorney.
There is hereby created the office of Attorney to the Zoning Board of Adjustment. The Zoning Board of Adjustment may annually appoint, fix the compensation of or agree upon the rate of compensation of the Zoning Board of Adjustment Attorney, who shall be an attorney other than the Township Attorney.
§ 240-22 Experts and staff.
In addition, the Zoning 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 Township Committee for its use.
§ 240-23 Rules and regulations; meetings.
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.
§ 240-24 Powers of Zoning Board of Adjustment.
A.
The powers of the Zoning 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.
It is further the intent of this chapter to confer upon the Zoning 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 or proceeding before the Board, including an application seeking only an interpretation of the zoning ordinance or map, to interpret and construe the provisions of Article VIII of this chapter, or any term, clause, sentence or word thereof, and the Zoning Map, in accordance with the general rules of construction, applicable to legislative enactment.
C.
The Board may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances from the terms of Article VIII of this chapter, in accordance with the general or specific rules contained herein, and with the general rules hereby laid down, that equity shall be done in cases where the strict construction of the provisions of this chapter would work undue hardship. 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 the same a copy of its rules and information as to how appeals or applications may properly be filed with the Board for is decision thereon.
§ 240-25 Appeals and applications.
A.
Appeals to the Board of Adjustment may be taken by any person aggrieved or by an officer, department, board or bureau of the municipality affected by any decision of the administrative officer. 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 five copies of such 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 addressed to the original jurisdiction of the Board of Adjustment without prior application to an administrative office shall be filed with the Zoning Officer or designee. The appropriate number of copies of the application as required by the checklist 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 Zoning Officer. 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.
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 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 otherwise than by 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.
D.
The appropriate fee shall be paid to the Board of Adjustment upon the filing of any petition. All fees shall be turned over to the Township Treasurer. Any stenographic transcripts required by the petitioner or by the Board of Adjustment shall be paid for by the petitioner in addition to the fee.
§ 240-26 Power to reverse or modify decisions.
In exercising the above-mentioned power, 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 office from whom the appeal was taken.
§ 240-27 Expiration of variance.
Any variance from the terms or provisions of Article VIII of this chapter granted by any municipal agency shall lapse unless the construction or alteration of any structure so authorized shall have been actually commenced on each and every structure so authorized or unless such permitted use has actually been commenced within nine months from the adoption of the resolution of the municipal agency granting such variance; except, however, that the running of said period of limitation herein provided shall be tolled from the date of filing of an appeal from the decision of the municipal agency to a court of competent jurisdiction until the termination in any manner of such appeal or proceeding or until the expiry of two years from the date of final approval of any site plan or subdivision sought as part of the application to the municipal agency for such variance. An applicant may request an extension of such period by application to the municipal agency on notice in accordance with the provisions of § 240-35.
§ 240-28 Powers granted by law.
The Board of Adjustment shall have such powers as are granted by law 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 officer based on or made in the enforcement of the zoning provisions of this chapter.
B.
Hear and decide requests for interpretation of the map or zoning provisions of this chapter or for decision upon other special questions upon which the Board is authorized to pass by provisions in the zoning provisions of this chapter.
C.
Variances.
(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 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 the zoning provisions 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 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 such regulations of the zoning provisions of this chapter; provided, however, that the fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this subsection and provided that no variance from those departures enumerated in N.J.S.A. 40:55D-70d 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 N.J.S.A. 40:55D-60a of the Municipal Land Use Law; and
D.
In particular cases and for special reasons, grant a variance to allow departure from regulations set forth in 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 specification or standard pursuant to N.J.S.A. 40:55D-67 pertaining solely to a conditional use;
(4)
An increase in the permitted floor area ratio, as defined in N.J.S.A. 40:55D-4;
(5)
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; or
(6)
A height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.
E.
A variance under this subsection shall be granted only by the affirmative of at least five members of the Board.
F.
If an application for development requests one or more variances, but not a variance for the purpose hereinabove enumerated, the decision on the requested variance or variances shall be rendered under Subsection C of this section.
G.
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that 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 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 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.
§ 240-29 Additional powers.
A.
The Zoning Board of Adjustment shall, in addition to the powers specified in § 240-28 have power given by law to:
(1)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 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.
(2)
Direct issuance of permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.
(3)
Hear applications pursuant to N.J.S.A. 40:55D-68, seeking to establish whether a specific use or structure is protected as a nonconforming use or structure.
B.
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 N.J.S.A. 40:55D-37 through N.J.S.A. 40:55D-58, or conditional use approval pursuant to N.J.S.A. 40:55D-67, whenever the Board is reviewing an application for approval of a variance pursuant to N.J.S.A. 40:55D-70. 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 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 detriment to the public good and 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 as otherwise provided by law for the approval in question, and the special vote pursuant to the aforesaid Subsection d of N.J.S.A. 40:55D-70 shall not be required.
§ 240-30 Time for decision.
A.
The Board of Adjustment shall render its decision not later than 120 days after the date:
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.