Upper Freehold Township
City Zoning Code
City Zoning Code
SECTION 35
700 Zoning Board of Adjustment and Planning Board
§ 35-701 ESTABLISHMENT OF THE ZONING BOARD OF ADJUSTMENT.
[Ord. No. 34-97 § 81-701]
A.
A Zoning Board of Adjustment is hereby created pursuant to N.J.S.A. 40:55D-69 et seq. consisting of seven regular members and two alternate members, each of whom shall be residents of the Township of Upper Freehold and be appointed by the Township Committee. The members of the heretofore created Zoning Board of Adjustment are hereby reappointed to serve their respective terms. The term of each regular member shall be four years, and the term of each alternate member shall be two years. All terms shall run from January 1 of the year in which the appointment is made.
B.
Alternate members shall be designated at the time of their appointment as "Alternate No. 1" and "Alternate No. 2". Alternate members may participate in the 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 is to vote, "Alternate No. 1" shall vote.
C.
No member of the Zoning Board of Adjustment shall hold an elective office or elective position under the municipality.
D.
Any vacancy on said Board occurring other than by expiration of term shall be filled by appointment by the Township Committee to serve for the unexpired term of the member whose term shall become vacant. A member may be removed by the Township Committee for cause, but only after public hearing, if requested, and other requested procedural due process protections.
E.
The Zoning Board of Adjustment shall organize annually by selecting from among its regular members a Chairman and Vice Chairman. The Board also shall select a Secretary who may or may not be a member of the Board or a municipal employee of the Township.
F.
The Township Committee, after giving due consideration to budget requests that may be submitted by the Zoning Board of Adjustment, shall make provisions in its budget and appropriate funds for the expenses of the Zoning Board of Adjustment. In any case, the Board shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the Township Committee for its use.
G.
The Office of Zoning Board of Adjustment Attorney is hereby created. The Board of Adjustment may annually appoint to such office and fix the compensation or rate of compensation of an attorney at law of New Jersey other than the Township Attorney.
H.
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.
I.
The Zoning Board of Adjustment shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter.
J.
The Zoning Board of Adjustment shall, at least once a year, review its decisions on applications and appeals for variances and prepare and adopt by resolution a report of its findings on zoning ordinance provisions which were the subject of variance requests and its recommendations for zoning ordinance amendment or revision, if any. The Zoning Board of Adjustment shall send copies of the report and resolution to the Township Committee and Planning Board.
K.
If the Zoning Board of Adjustment lacks a quorum because any of its regular or alternate members is prohibited by N.J.S.A. 40:55D-23b or 40:55D-23.1 and Subsection 35-706A of this chapter 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 Zoning 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 members 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.
§ 35-702 POWERS AND JURISDICTION OF THE ZONING BOARD OF ADJUSTMENT.
[Ord. No. 34-97 § 11-762]
The Zoning Board of Adjustment shall have the powers listed below in addition to other powers established by law. Since the powers and jurisdiction of the Zoning Board of Adjustment have been delegated to and imposed upon it by the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.), the Zoning Board of Adjustment shall in all cases follow the provisions applicable to it in said statute or subsequent statute(s) in such case made and provided.
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 an 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 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 a property, grant, upon an application or an appeal relating to the property, a variance from the strict application of such regulation so as to relieve such difficulties or hardship, based upon one or more of the following three reasons:
a.
Exceptional narrowness, shallowness or shape of a specific piece of property; or
b.
Exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or
c.
An extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon.
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.
3.
No variance from those departures enumerated in Subsection 35-702D hereinbelow (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 Subsection 35-705I of this chapter (N.J.S.A. 40:55D-60a).
D.
Use Variances, Variances From Conditional Use Standards, And Major 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 zoning district restricted against such use or principal structure;
2.
An expansion of a non-conforming use;
3.
A 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 this chapter and in N.J.S.A. 40:55D-4;
5.
An increase in the permitted density as defined in this chapter 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 35-702C hereinabove; or
6.
A height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the zoning district for a principal structure.
A variance under this Subsection shall be granted only by affirmative vote of at least five members of the Zoning Board of Adjustment.
E.
General Provisions.
1.
No variance or other relief may be granted by the Zoning Board of Adjustment under the terms of this chapter unless such variance or other relief can be granted without substantial detriment to the public good and without substantial impairment to the intent and purpose of the zone plan and the zoning provisions of this chapter.
2.
An application under this Subsection of the chapter may be referred by the Zoning Board of Adjustment 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.
3.
The Zoning Board of Adjustment, in granting any variance which by law it is authorized to grant, may impose such conditions, in addition to those required in this chapter, as are necessary to assure that the general purposes and intent of this chapter are met.
4.
All variances shall expire within five years from the date of the variance approval unless the owner shall have secured a construction permit and shall have commenced construction in conformity with the variance approval, including any conditions attached to the approval, provided that the following exceptions shall apply:
a.
For variances which become the subject of litigation, the five-year period shall commence on the date of the last reviewing court's decision to grant the variance.
b.
For good cause shown, and after a hearing before the Board on notice in the manner required for original variance applications, the Zoning Board of Adjustment may extend the variance by resolution. Any extension may not exceed one year in duration and no more than four such 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.
c.
Anything herein to the contrary notwithstanding, any variance granted with a site plan, subdivision, and/or conditional use approval shall expire with the expiration of the site plan, subdivision, and/or conditional use approval.
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, if an Official Map is adopted by the Township, whenever one or more parcels of land within said bed cannot yield a reasonable return to the owner unless a construction permit is granted.
a.
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;
b.
The Zoning 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; and
c.
However, the Zoning Board of Adjustment shall not exercise the power otherwise granted herein if the proposed development requires approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board has power to direct the issuance of the permit pursuant to N.J.S.A. 40:55D-60b and Subsection 35-705I2 of this chapter.
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. N.J.S.A. 40:55D-35 of the Municipal Land Use Law otherwise requires that no permit for the erection of any building or structure shall be issued unless the lot abuts a street giving access to such proposed building or structure.
a.
N.J.S.A. 40:55D-35 also requires that the street shall either have been shown on a duly adopted Official Map, if an Official Map is adopted by the Township, or be either: (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;
b.
N.J.S.A. 40:55D-35 also requires that, before any permit is issued, the subject street shall have been certified to be suitably improved to the satisfaction of the Township Committee, or that such suitable improvement shall have been assured by means of a performance guarantee, in accordance with standards and specifications for road improvements approved by the Township Committee, as adequate in respect to the public health, safety and general welfare of the special circumstance of the particular street;
c.
Finally, N.J.S.A. 40:55D-35 requires that the proposed access to the building or structure conforms with the standards of the "New Jersey State Highway Access Management Code" in the case of State highway, or with the standards of any access management code adopted by Monmouth County in the case of a County road, or with the standards of any access management code adopted by Upper Freehold Township in the case of a municipal street;
d.
In accordance with N.J.S.A. 40:55D-36, the Zoning Board may grant relief from the requirements of N.J.S.A. 40:55D-35 only when the enforcement of that statute 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;
e.
The Zoning Board may vary the requirements of N.J.S.A. 40:55D-35 and may 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 Traffic Circulation Plan Element of the municipal Master Plan; and
f.
However, the Zoning Board of Adjustment shall not exercise the power otherwise granted herein if the proposed development requires approval by the Planning Board of a subdivision, site plan or conditional use in conjunction with which the Planning Board has power to direct the issuance of the permit pursuant to N.J.S.A. 40:55D-60c and Subsection 35-705I3 of this chapter.
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 35-702D of this chapter.
a.
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;
b.
The separate approval of the variance shall be conditioned upon a grant of all required subsequent approvals by the Zoning Board of Adjustment;
c.
No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment to the intent and purpose of the zone plan and the zoning provisions of this chapter; and
§ 35-703 APPEALS AND APPLICATIONS TO THE ZONING BOARD OF ADJUSTMENT.
[Ord. No. 34-97 § 81-703]
A.
Appeals to the Zoning Board of Adjustment may be taken by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning provisions of this chapter or a duly adopted 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, with three copies of the notice given to the Secretary of the Zoning Board of Adjustment. The notice shall specify the grounds for the appeal. The official 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.
1.
The Zoning 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 powers of the municipal official from whom the appeal is taken.
2.
An appeal to the Zoning Board of Adjustment shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the municipal official from whose action the appeal is taken certifies to the Zoning 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 municipal official from whom the appeal is taken and due cause shown.
B.
A developer may file an application for development with the Zoning Board of Adjustment for action under any of its powers without prior application to an administrative officer. Sixteen copies of the application shall be given to the Secretary of the Zoning Board of Adjustment.
C.
At the time of filing either an appeal or an application for development to the Zoning Board of Adjustment, the interested party or developer also shall file all plot plans, maps or other papers required by virtue of any provision of this chapter or by any rule of the Zoning Board of Adjustment. The applicant shall obtain all necessary forms from the Secretary of the Zoning Board of Adjustment.
D.
The Zoning Board of Adjustment shall act upon any appeal or any application for development within 120 days either from the date the appeal is taken from the decision of the municipal official or from the date the application for development is certified as a complete application, as the case may be, or within such further time as may be consented to by the applicant, except that when an applicant elects to submit separate consecutive applications, first for a "use" or other variance approval pursuant to Subsection 35-702D of this chapter and subsequently for site plan, subdivision or conditional use approval, the 120-day time period for action shall apply to the application for approval of the "use" or other variance, and the time period for granting or denying any subsequent site plan, subdivision or conditional use approval shall be as otherwise provided in this chapter.
§ 35-704 ESTABLISHMENT OF THE PLANNING BOARD.
[Ord. No. 34-97 § 81-704]
A.
A Planning Board is hereby created pursuant to N.J.S.A. 40:55D-23 et seq. consisting of nine regular and up to two alternate members of the following four classes:
Class I | The Mayor or the Mayor's designee in the absence of the Mayor |
Class II | One of the officials of the municipality other than a member of the Township Committee, 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 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 or alternate members |
Class III | A member of the Township Committee to be appointed by it |
Class IV Regular Members | 6 other citizens of the municipality, to be appointed by the Mayor. The members of Class IV shall hold no other municipal office, except that 1 member may be a member of the Zoning Board of Adjustment and 1 member may be a member of the Board of Education. A member of the Environmental Commission who also is 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 is 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 |
Class IV Alternate Members | 2 other citizens of the municipality who may be appointed by the Mayor. Alternate members shall meet the qualifications of Class IV regular members. The alternate members shall be designated by the Mayor at the time of their appointment as "Alternate No. 1" and "Alternate No. 2" |
B.
The term of the member composing Class I shall correspond with the Mayor's official tenure, or if the member is the Mayor's designee in the absence of the Mayor, the designee shall serve at the pleasure of the Mayor during the Mayor's official tenure. The terms of the member composing Class II and Class III shall be for one year or terminate at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the Environmental Commission. The term of a Class II or Class IV member who is also a member of the Environmental Commission shall be for three years or terminate at the completion of his term as a member of the Environmental Commission, whichever comes first. The term of a Class IV member who is also a member of the Zoning Board of Adjustment or the Board of Education shall terminate whenever he is no longer a member of such other body or at the completion of his Class IV term, whichever comes first.
C.
All present Class IV members of the Planning Board shall continue in office until the completion of the terms for which they were appointed.
D.
The terms of Class IV regular members first appointed pursuant to this section 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; provided that the initial term shall not exceed four years. Thereafter the term of each Class IV regular member shall be four years. All terms shall run from January 1 of the year in which the appointment is made.
E.
The terms of the Class IV alternate members shall be two years, except that the terms of the alternate members shall be such that the term of not more than one alternate member shall expire any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. All terms shall run from January 1 of the year in which the appointment is made.
F.
Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member of any class. 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.
G.
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. Any member other than a Class I member may be removed by the Township Committee for cause, but only after public hearing, if requested, and other requested procedural due process protection.
H.
The Planning Board shall organize annually by selecting from among its Class IV regular members a Chairman and Vice Chairman. The Board also shall select a Secretary, who may or may not be a member of the Board or an employee of the Township.
I.
The Township Committee, after giving due consideration to budget requests that may be submitted by the Planning Board, shall make provisions in its budget and appropriate funds for the expenses of the Planning Board. In any case, the Board shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the Township Committee for its use.
J.
The office of Planning Board Attorney is hereby created. The Planning Board may appoint to such office and fix compensation or rate of compensation of an attorney at law of New Jersey other than the Township Attorney.
K.
The Planning Board may also employ or contract for and fix the compensation of such experts and other staff and services as it may deem necessary.
L.
The Planning Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter.
M.
If the Planning Board lacks a quorum because any of its regular or alternate members is prohibited by N.J.S.A. 40:55D-23b or 40:55D-23.1 and Subsection 35-706A of this chapter from acting on a matter due to the member's personal or financial interest therein, regular members of the Zoning Board of Adjustment shall be called upon to serve, for that matter only, as temporary members of the Planning Board in order of seniority of continuous service to the Zoning Board of Adjustment until there are the minimum number of members 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 regular members of equal seniority, the Chairman of the Zoning Board shall make the choice.
§ 35-705 POWERS AND JURISDICTION OF THE PLANNING BOARD.
[Ord. No. 34-97 § 81-705]
The Planning Board shall have the powers listed below in addition to other powers established by law. Since the powers and jurisdiction of the Planning Board have been delegated to and imposed upon it by the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.), the Planning Board shall in all cases follow the provisions applicable to it in said statute or subsequent statute(s) in such case made and provided.
A.
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 relationship to the planning of the Township.
B.
Administer the Subdivision and Site Plan Review provisions of this Land Development chapter in accordance with the applicable provisions of the chapter.
C.
Hear and decide applications for conditional uses in accordance with the applicable provisions of this chapter and N.J.S.A. 40:55D-67.
D.
Participate in the preparation and review of programs or plans required by state or federal law or regulation.
E.
Assemble data on a continuing basis as part of a continuous planning process.
F.
Annually, at the request of the Township Committee, prepare a program of municipal capital improvements projects projected over a term of six years and recommend the program to the Township Committee.
G.
Consider and report to the Township Committee within 35 days after referral as to any proposed development regulation submitted to the Board pursuant to N.J.S.A. 40:55D-26a, and also pass upon other matters specifically referred to the Planning Board by the Township Committee pursuant to N.J.S.A. 40:55D-26b.
H.
Perform such other advisory duties as are assigned to it by Ordinance or resolution of the Township Committee for the aid and assistance of the Township Committee or other agencies and officers.
I.
Whenever a proposed development requires approval of a subdivision, site plan or conditional use, but not a variance pursuant to Subsection 35-702D of this chapter (N.J.S.A. 40:55D-70d), the Planning Board shall have the authority to grant to the same extent and subject to the same restrictions as the Zoning Board of Adjustment:
2.
Direction pursuant to Subsection 35-702F1 of this chapter (N.J.S.A. 40:55D-34) for issuance of a permit for a building or structure in the bed of a mapped street or public drainage, flood control basin or public area reserved pursuant to N.J.S.A. 40:55D-32.
3.
Direction pursuant to Subsection 35-702F2 of this chapter (N.J.S.A. 40:55D-36) for issuance of a permit for a building or structure not related to a street.
Whenever relief is requested pursuant to this Subsection, notice of the hearing on the application for development shall include reference to the request for a variance, or direction for issuance of a permit, as the case may be.
The developer may elect to submit a separate application requesting approval of the variance or direction of the issuance of a permit, and a subsequent application for any required approval for a subdivision, site plan, or conditional use. The separate approval of the variance or direction of the issuance of a permit shall be conditioned upon grant of all required subsequent approvals by the Planning Board. No such subsequent approval shall be granted unless the approval can be granted without substantial detriment to the public good and without substantial impairment to the intent and purpose of the zone plan and the zoning provisions of this chapter.
§ 35-706 PROVISIONS APPLICABLE TO BOTH THE PLANNING BOARD AND THE ZONING BOARD OF ADJUSTMENT.
[Ord. No. 34-97 § 81-706]
A.
Conflicts Of Interest.
No regular or alternate 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 particular matter nor participate in any discussion by the Board or any decision relating thereto.
B.
Meetings.
In accordance with N.J.S.A. 40:55D-9 of the Municipal Land Use Law:
1.
Meetings of both the Planning Board and the Zoning Board of Adjustment shall be scheduled no less than once a month and any meeting so scheduled shall be held as scheduled unless cancelled 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 meetings 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 the members of the Board present at the meeting except as otherwise required by a provision of the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) or of the Open Public Meeting Law (C. 231, Laws of New Jersey, 1975). A member of the Board who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on a matter upon which the hearing was conducted, notwithstanding his or her absence from one or more of the meetings; provided, however, that such Board member has available the transcript or recording of all of the hearing from which he or she was absent, and certifies in writing to the Board that he or she has read such transcript or listened to such recording.
5.
All regular meetings and all special meetings shall be open to the public, except as provided in the Open Public Meeting Law C.231, Laws of New Jersey, 1975. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meeting Law C.231, Laws of New Jersey, 1975.
C.
Public Hearings.
In accordance with N.J.S.A. 40:55D-10 of the Municipal Land Use Law:
1.
Subsequent to an application for development being declared complete, the Planning Board or the Zoning Board of Adjustment, as the case may be, shall hold a hearing on the application for development. Each Board shall make rules governing such hearings, provided such rules are not inconsistent with the provisions of the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) or the provisions of this chapter.
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 Administrative Officer. The applicant may produce any 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 hearings, or such person as he may designate, shall have the 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 (C.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, or such other person as he may designate, 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 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.
D.
Public Notice Of A Hearing.
In accordance with N.J.S.A. 40:55D-12 of the Municipal Land Use Law:
1.
Public notice of a hearing shall be given for the following applications for development.
a.
Any request for a variance;
b.
Any request for conditional use approval;
c.
Any request for issuance of a permit to build within the bed of a mapped street or public drainage or on a lot not abutting a street;
d.
Any request for minor 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/or a major site plan; and
f.
Any request for approval of a planned development.
2.
The Secretary of the Planning Board or the Secretary of the Zoning Board of Adjustment, as the case may be, shall notify the applicant at least two weeks prior to the public hearing at which the application will be discussed. 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.
Publication in an official newspaper of the Township, if there is one, or in a newspaper of general circulation in the Township in the absence of an official newspaper; and
b.
By notification by personal service or certified mail to the following. An affidavit of proof of the giving of the required notice shall be filed by the applicant with the municipal agency at, or prior to, the hearing. It is not required that a return receipt is obtained since notice is deemed complete upon mailing (N.J.S.A. 40:55D-14); however, evidence that the required notice was mailed to the following shall be provided to the Planning Board or Zoning Board of Adjustment, as the case may be, prior to the subject public hearing:
1)
To all owners of real property as shown on the current tax duplicate, located in the State and within 200 feet in all directions of the property which is the subject of the hearing; provided that this requirement shall be deemed satisfied by notice: (1) to the condominium association, in the case of any unit owner whose unit has a unit above or below it; or (2) to the horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it.
a)
Notice to a partnership owner may be made by service upon any partner.
b)
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.
c)
Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the property which is the subject of the hearing, may be made in the same manner as to a corporation without further notice to unit owners, co-owners, or homeowners on account of such common elements or areas.
2)
To the Clerk of any adjoining municipality or municipalities when the property involved is located within 200 feet of said adjoining municipality or municipalities.
3)
To the Monmouth County Planning Board when the application for development involves property adjacent to an existing county road or proposed road as shown on the County Official Map or County Master Plan, property adjoining other county land or property situated within 200 feet of a municipal boundary.
4)
To the Commissioner of Transportation of the State of New Jersey when the property abuts a state highway.
5)
To the State Planning Commission when the hearing involves an application for the 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 filed with the Township.
6)
To the person whose name appears on the registration form pursuant to N.J.S.A. 40:55D-12.1 for a public utility, cable television company, or local utility which possesses a right-of-way or easement within the Township.
3.
Upon the written request of an applicant, the Township Tax Assessor shall, within seven days, make and certify a list from current tax duplicates of names and addresses of owners within the Township of Upper Freehold to whom the applicant is required to give notice.
a.
The applicant shall be charged $0.25 per name or $10, whichever is greater, for said list and shall be entitled to rely upon the information contained in such list, and failure to give notice to any lot owner or to any public utility, cable television company, or local utility not on the list shall not invalidate any hearing or proceeding.
b.
Additionally, the applicant shall be responsible for giving proper notice to all property owners pursuant to Subsection 35-706D2b above who own property not located within the Township of Upper Freehold.
4.
At a minimum, the notice shall state the following:
a.
The name and address of the applicant;
b.
The date, time and place of the hearing;
c.
The nature of the matters to be discussed, including all variances and/or waivers requested by the applicant;
d.
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 Township Tax Assessor's office; and
e.
The location and times at which any maps or documents for which approval is sought are available for inspection.
5.
Regarding any application for development being reviewed by the Planning Board or Zoning Board of Adjustment, as the case may be, and said Board determines that substantial revisions have been made to said application subsequent to the date when it was determined to be a "complete application", then the Board may require the applicant to again comply with the notice requirements specified in this Subsection of the chapter.
6.
Every public utility, cable television company and local utility interested in receiving notice pursuant to N.J.S.A. 40:55D-12 may register with the Township of Upper Freehold if the public utility, cable television company or local utility has a right-of-way or easement within the municipality:
a.
A registration fee of $10 is required for any public utility, cable television company or local utility which registers to receive notice;
b.
The registration shall remain in effect until revoked by the public utility, cable television company, or local utility or by its successor in interest;
c.
The Administrative Officer of the Township shall adopt a registration form and maintain a record of all public utilities, cable television companies, and local utilities which have registered with the Township; and
d.
The registration form shall include the name, address and position of the person to whom the notice shall be forwarded and the information contained therein shall be made available to any applicant.
E.
Records.
In accordance with N.J.S.A. 40:55D-9 and N.J.S.A. 40:55D-10 of the Municipal Land Use Law:
1.
Minutes of every regular or special meeting shall be kept and shall include the names and addresses of the persons appearing and addressing the Planning Board or the Zoning Board of Adjustment, and of any persons appearing by attorney, the action taken by the Planning or Zoning Board, the findings, if any, made by it and the reasons therefor:
a.
The minutes shall thereafter be made available, after approval by the Board, for public inspection during the normal business hours at the office of the Administrative Officer;
b.
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; and
F.
Decisions.
In accordance with N.J.S.A. 40:55D-10 of the Municipal Land Use Law:
1.
Each decision on any application for development shall be reduced to writing by the Board and shall include findings of facts and conclusions based thereon.
2.
The Board shall provide the findings and conclusions through:
a.
A resolution adopted at a meeting held within the time period provided in this chapter for action by the Board on the application for development; or
b.
A memorializing resolution adopted at a meeting held no later than 45 days after the date of the meeting at which the Board voted to grant or deny approval:
1)
Only the members of the Board who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution; and
2)
An action pursuant to N.J.S.A. 40:55D-9 (resulting from the failure of a motion to approve an application) shall be memorialized by resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution.
3.
The vote to adopt any memorializing resolution shall be deemed to be a memorialization of the action of the Board and not to be an action of the Board; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required in § 35-708 of this chapter.
4.
If the Board fails to adopt a resolution or memorializing resolution as hereinabove specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the Board to reduce its findings and conclusions to writing within a stated time and the cost of the application, including attorneys fees, shall be assessed against the municipality.
5.
Whenever any application for development is approved by the Board with a condition or conditions which require revisions to the subdivision plat or site plan, as the case may be, and when such revisions do not require a subsequent approval from any other entity, all such revisions to the subdivision plat or site plan shall be made by the applicant and submitted to the Board within one year from the date of the adoption of the approval resolution, or said approval shall lapse and become null and void.
§ 35-707 APPEAL OF "D" VARIANCE APPROVAL DECISION.
[Ord. No. 34-97 § 81-707]
A.
Any interested party may appeal to the Township Committee any final decision of the Zoning Board of Adjustment approving an application for a "d" variance pursuant to N.J.S.A. 40:55D-70d and Subsection 35-702D of this chapter. Notwithstanding the aforesaid right of appeal to the Township Committee, any party has the right to obtain a review of such Zoning Board of Adjustment decision by any court of competent jurisdiction according to law.
B.
Any appeal to the Township Committee shall be made within 10 days of the date of publication of such final decision pursuant to § 35-708 of this chapter. The appeal to the Township Committee 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 the name and address of his or her attorney, if represented.
C.
The appellant shall either:
1.
Within five days of serving notice of the appeal, arrange for a transcript and seven copies thereof for use by the Township Committee, and pay a deposit of $50 or the estimated cost for such transcription, whichever is less (provided that the charge by the Township to the applicant for the transcript shall not exceed the maximum permitted in N.J.S.A. 2A:11-15); or
2.
Within 35 days of serving notice of the appeal, submit a transcript to the Township Clerk for use by the Township Committee.
Should the appellant neither arrange for nor submit a transcript as provided hereinabove, the Township Committee may dismiss the appeal for failure to prosecute. All transcripts shall be certified in writing by the transcriber to be accurate.
D.
Notice of the meeting to review the record below shall be given by the Township Committee by personal service or certified mail to the appellant, to those entitled to notice of a decision pursuant to § 35-708 of this chapter, and to the Zoning Board of Adjustment at least 10 days prior to the date of the meeting. The appeal shall be decided by the Township Committee only upon the record established by the Zoning Board of Adjustment. The parties may submit oral and written arguments on the record at the Township Committee meeting.
E.
The Township Committee shall conclude a review of the record below not later than 95 days from the publication of the notice of the subject decision of the Zoning Board of Adjustment, unless the appellant consents in writing to an extension of such time period. Failure of the Township Committee 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.
F.
The Township Committee may reverse, remand or affirm, with or without conditions, the final decision of the Zoning Board of Adjustment being appealed. The affirmative vote of a majority of the full authorized membership of the Township Committee shall be necessary to affirm or reverse the decision, to remand the application to the Zoning Board of Adjustment or to impose conditions or alter conditions to the final decision of the Zoning Board of Adjustment. In the event that the Township Committee cannot obtain a majority vote of the full authorized membership for an action on the appeal, the final decision of the Zoning Board of Adjustment shall be deemed affirmed without change.
G.
An appeal to the Township Committee shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the Zoning Board of Adjustment certifies to the Township Committee, after the notice of appeal has been filed with the Board, that by reasons of facts stated in the certificate a stay would, in its 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 on application upon notice to the Zoning Board of Adjustment and on good cause shown.
§ 35-708 NOTICE OF PLANNING BOARD, ZONING BOARD OF ADJUSTMENT AND TOWNSHIP COMMITTEE DECISIONS.
[Ord. No. 34-97 § 81-708]
In accordance with N.J.S.A. 40:55D-10 and N.J.S.A. 40:55D-17 of the Municipal Land Use Law, any resolution adopted by the Planning Board or the Zoning Board of Adjustment regarding its action upon an application for development and any resolution adopted by the Township Committee regarding its action upon an appeal shall be given notice in the following manner:
A.
Within 10 days of the date of its adoption, a copy of the resolution shall be mailed by the appropriate Township authority to the applicant or appellant, or, if represented, then to his or her attorney, without separate charge. A copy of the resolution also shall be mailed within 10 days to any interested party who has requested it and who has paid the fee indicated in § 35-901 of this chapter.
B.
The Administrative Officer shall cause a brief notice of the resolution adopted by the Planning Board, Zoning Board of Adjustment or Township Committee, as the case may be, to be published in an official newspaper of the Township. The notice shall be sent to an official newspaper for publication within 10 days of the date of the adoption of any such resolution, and the cost for the notice shall be charged to the applicant's escrow account.
§ 35-709 NOTICE FOR ZONING ORDINANCE AMENDMENTS AND FILING OF PROTEST.
[Ord. No. 34-97 § 81-709]
A.
Notice. In accordance with N.J.S.A. 40:55D-62.1 of the Municipal Land Use Law, notice of the hearing or hearings on an amendment to the zoning ordinance provisions of this Land Development chapter which proposes a change either to classification of a zoning district or to the boundaries of a zoning district, exclusive of the classification or boundary changes recommended in a periodic general reexamination of the Upper Freehold Township Master Plan by the Planning Board in accordance with N.J.S.A. 40:55D-89 of the Municipal Land Use Law, shall be given by the Township Clerk at least 10 days prior to the date of the hearing in accordance with the following:
1.
The notice shall be given to the owners of all real property within the State of New Jersey as shown on the current tax duplicates as follows:
a.
In the case of a zoning classification change, the notice shall be given to all such owners located within the subject zoning district and within 200 feet thereof; or
b.
In the case of a zoning district boundary change, the notice shall be given to all such owners located within 200 feet of the proposed new boundaries of the subject zoning district.
2.
The notice shall be given by either one of the following methods:
3.
Notice to a partnership owner, to a corporate owner or to a condominium association, horizontal property regime or community trust or homeowners' association shall be given as follows:
a.
Notice to a partnership owner may be made by service upon any partner;
b.
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; or
c.
Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the boundaries of the zoning district which is the subject of the hearing, may be made in the same manner as to a corporation, in addition to notice to unit owners, co-owners, or homeowners on account of such common elements or areas.
4.
At a minimum, the notice shall state the following:
a.
The date, time and place of the hearing; and
b.
The nature of the matter to be considered and an identification of the affected zoning districts and proposed boundary changes, if any, by street names, common names or other identifiable landmarks, and by reference to lot and block numbers as shown on the current tax duplicate in the office of the Township Tax Assessor.
5.
The Township Clerk shall execute affidavits of proof of service of the notices required hereinabove and shall keep the affidavits on file along with the proof of publication of the notice of the required public hearing(s) on the proposed zoning ordinance change. Costs of the notice provision shall be the responsibility of the proponent of the amendment.
B.
Protest.
In accordance with N.J.S.A. 40:55D-63 of the Municipal Land Use Law, a protest against any proposed amendment or revision of a zoning ordinance may be filed with the Township Clerk, signed by the owners of 20% or more of the area either: (1) Of the lots or land included in such proposed change; or (2) Of the lots or land extending 200 feet in all directions therefrom, inclusive of any street space, and whether within or without the Township. Such amendment or revision shall not become effective following the filing of such protest except by the favorable vote of 2/3 of all the members of the Township Committee.