Washington Township Morris County
City Zoning Code
City Zoning Code
ARTICLE XI
Zoning Board of Adjustment
§ 217-109 Establishment; appointment; organization.
§ 217-110 General powers and duties; rules of procedure.
A.
The Board shall adopt such rules of procedure not inconsistent with the provisions of the Revised Statutes of New Jersey and local ordinances, as it may deem necessary to the proper performance of its duties and the proper exercise of its powers.
B.
Powers.
(1)
The Board of Adjustment shall have the power 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 this chapter.
(b)
Hear and decide in accordance with the provisions of any such ordinance, requests for interpretation of this chapter or the Zoning Map or for decisions upon other special questions upon which such Board is authorized to pass by any Zoning or Official Map Ordinance in accordance with this chapter.
(c)
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 such difficulties or hardship; provided however, that no variance shall be granted under this section 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, a site plan or conditional use in conjunction with which the Planning Board shall review a request for a variance pursuant to § 217-129 of this chapter.
(d)
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.
(2)
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. An application 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.
§ 217-111 Other powers.
The Board of Adjustment shall have the power to:
A.
Direct issuance of a permit pursuant to N.J.S.A. 40:50-54 for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area reserved on the Official Map;
B.
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street; or
C.
Grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision, site plan or conditional use approval whenever the Board of Adjustment is reviewing an application for approval of a variance pursuant to N.J.S.A. 40:55D-70d.
§ 217-112 Employees.
The Board of Adjustment may employ, or contract for, and fix the compensation for legal counsel other than the Township Attorney and experts and other staff and services, as it shall deem necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
§ 217-113 Meetings; votes necessary for decisions; minutes.
A.
The Board of Adjustment shall, by its rules, fix the time and place for holding its regular meetings for business authorized to be conducted by the Board. Regular meetings shall be scheduled unless canceled for lack of applications for development to process. The Board may provide for special meetings, at the call of the Chairman, or on the request of any two of its members, which shall be held on notice to its members and the public in accordance with Township regulations. No action shall be taken at any meeting without a quorum being present. All actions shall be taken by a majority vote of a quorum present except as follows:
B.
All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with Township regulations.
C.
Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Board and of the persons appearing by attorney, the action taken by the Board, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the Board. 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. Such interested party may be charged a reasonable fee for reproduction of the minutes for his use.
§ 217-114 Appeals and applications.
A.
Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of an administrative officer of the Township based on or made in the enforcement of this chapter or Official Map. Such appeal shall be taken within 65 days of the decision of the administrative officer by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal. 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.
A developer may file an application for development with the Board of Adjustment for action under any of its powers without prior application to an administrative officer.
§ 217-115 Stay of proceedings by appeal; exception.
An 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.
§ 217-116 Hearing on appeals or application; notice of hearing and service.
A.
Upon the filing of any appeal as hereinafter provided, or other application in any matter of proceeding over which the Board of Adjustment shall have jurisdiction by law or ordinance, the Board shall hold a hearing on such appeal or application.
B.
The Board of Adjustment shall cause notice of the time and place of the hearing to be given to the appellant or applicant and a similar notice stating the purpose of the hearing to be published in the official newspaper of the Township at least 10 days prior to the hearing. All maps and documents pertaining to the hearing shall be on file and available for inspection at least 10 days prior to the date of the hearing at the offices of the Board during normal business hours.
C.
Notice of a hearing shall be given to the owner of all real property, as shown on the current tax duplicate, located within 200 feet in all directions of the property which is the subject of such hearing. Notice shall be given by serving a copy thereof on the property owner as shown on said current tax duplicate or his agent in charge of the property or by mailing a copy thereof by certified mail to the property owner at his address as shown on said current tax duplicate. 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.
Upon the written request of an applicant, the Tax Assessor shall, within seven days, make and certify a list from said current tax duplicates of names and addresses of owners to whom the applicant is required to give notice. The applicant 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. The sum of $10 shall be charged for such list.
E.
Notice of all hearings on applications for development involving property located within 200 feet of an adjoining municipality shall be given by personal service or certified mail to the Clerk of such municipality.
F.
Notice shall be given by personal service or certified mail to the County Planning Board of a hearing on an application adjacent to an existing county road or proposed road shown on the Official County Map or on the County Master Plan, adjoining other county land or situated within 200 feet of a municipal boundary.
G.
Notice shall be given by personal service or certified mail to the Commissioner of Transportation of a hearing on an application adjacent to a state highway.
H.
Notice shall be given by personal service or certified mail to the Director of the Division of State and Regional Planning of a hearing on an application which exceeds 150 acres or 500 dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the Municipal Clerk pursuant to Subsection B of this section.
I.
The applicant shall file an affidavit of proof of service with the Board at the time of the hearing.
§ 217-117 Effect of mailing notice.
Any notice made by certified mail shall be deemed complete upon mailing.
§ 217-118 Fees for appeal or application; cost of taking testimony.
[Amended 7-15-1985 by Ord. No. 27-85; 7-20-1992 by Ord. No. 12-92; 2-19-1996 by Ord. No. 4-96]
A.
Upon the filing of any application to the Zoning Board of Adjustment by any person other than an officer, department, board or agency of the Township, the applicant shall pay the following fees and review deposits:
[Amended 6-17-2002 by Ord. No. 23-02; 4-18-2011 by Ord. No. 03-11]
(1)
Fees covering administration and overhead:
Type of Application | Fee | |
|---|---|---|
Appeals (N.J.S.A. 40:55D-70a) | $100 | |
Interpretations (N.J.S.A. 40:55D-70b) | $100 | |
Bulk variances (N.J.S.A. 40:55D-70c) | ||
Residential | $250 | |
Nonresidential | $500 | |
Use variances (N.J.S.A. 40:55D-70d) | $750 | |
Permit (N.J.S.A. 40:55D-34 and 40:55D-35) | $150 | |
Extension of time for variance, per lot | $100 |
(2)
Review deposits covering the cost of engineering, legal, professional planning and other expert review and documentation and disbursements:
[Amended 9-21-2015 by Ord. No. 09-15]
Type of Application | Fee | |
|---|---|---|
Appeals (N.J.S.A. 40:55D-70a) | $1,000 per lot | |
Interpretations (N.J.S.A. 40:55D-70b) | $1,000 per lot | |
Bulk variances (N.J.S.A. 40:55D-70c) | ||
Residential | $2,000 per lot | |
Nonresidential | $3,000 per lot | |
Use variances (N.J.S.A. 40:55D-70d) | ||
Residential | $2,000 per lot | |
Nonresidential | $10,000 per lot | |
Permit (N.J.S.A. 40:55D-34 and 40:55D-35) | $1,500 per lot | |
Extension of time for variance | $100 per lot |
C.
Tabulation and appeal of review fees.
(1)
The Chief Financial Officer shall tabulate the costs of the Engineer, planner and attorneys, their staffs and any outside consultants required when an application is of a nature beyond the scope of the expertise of the professionals normally utilized by the Township, for a proper review and documentation pursuant to vouchers submitted by the professionals identifying the personnel performing the service, and stating the date the services were performed, the hours spent to one-fourth-hour increments, the hourly rate and the expenses incurred. All charges and fees shall be established by resolution of the governing body. Expenses shall be actual out-of-pocket expenses of any such professionals or consultants, including normal and typical expenses incurred in processing applications. Vouchers shall be submitted monthly to the Chief Financial Officer with a copy to the developer. These costs shall be deducted from the engineering/planning/legal review fee escrow deposit and paid to the professionals by the Chief Financial Officer. Where the reasonable and necessary review costs exceed or are anticipated to exceed the review fee deposit, the developer shall pay the additional amount prior to the signing of any plat. Failure to remit the additional required deposit within 15 days of the request shall render the application incomplete, and no further proceedings or action shall be taken by the Zoning Board of Adjustment until after compliance.
(2)
The Chief Financial Officer shall prepare and send to the developer a statement which shall include an accounting of funds listing all deposits, interest earnings, disbursements and the cumulative balance of the escrow account. This statement shall be provided quarterly, if monthly charges are $1,000 or less, or monthly, if monthly charges exceed $1,000.
(3)
After the final plat has been signed, the developer shall send written notice, by certified mail, to the Chief Financial Officer, the Zoning Board of Adjustment, the Township Engineer and other relevant professional that the application is completed. After receipt of such notice, the Engineer and/or other professional shall submit a final voucher to the Chief Financial Officer within 30 days with a copy to the developer. The Chief Financial Officer shall render a written final accounting to the developer on the status of the escrow within 45 days of receipt of the final bill, together with any balance remaining in the account, including interest in accordance with N.J.S.A. 40:55D-53.1.
(4)
Within 15 days of the tabulation of review costs and notification of the developer by the Chief Financial Officer, the developer shall have the right to appeal said tabulation by so notifying the Township Committee, in writing, with copies to the Chief Financial Officer, the Zoning Board of Adjustment and any relevant professional, provided that any additional fees or amounts required by the Zoning Board of Adjustment to be paid prior to the signing of any plat or certificate of occupancy must be paid by the developer prior to the bringing of any such appeal. Upon receipt of any such appeal, the Zoning Board of Adjustment shall review the same and make a recommendation thereon to the Township Committee within 45 days. The Township Committee shall then decide the proper review fee to be charged, based upon information provided by both the developer and the Zoning Board of Adjustment. If the matter is not resolved to the satisfaction of the developer, the developer may appeal to the County Construction Board of Appeals, established under P.L. 1975, c. 217 (N.J.S.A. 52:27D-127), any charge to an escrow account or a deposit by any municipal professional or consultant pursuant to the procedure set forth in N.J.S.A. 40:55D-53.2.
D.
The Board shall provide for the verbatim recording of the proceedings by electronic means. A transcript, or duplicate recording in lieu thereof, shall be furnished, on request, to any interested party, at his expense.
§ 217-119 Time limit for decision.
A.
The Board of Adjustment shall render a decision not later than 120 days after the date an appeal is taken from the decision of an administrative officer or the submission of a complete application for a use variance.
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.
§ 217-120 Modification on 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 administrative officer from whom the appeal is taken.
§ 217-121 Temporary permits.
Temporary permits may be authorized by the Board of Adjustment after a hearing for a period not to exceed one year for nonconforming uses incidental to construction projects on the same premises and including such uses as storage of building supplies and machinery and the assembly of building materials. The temporary certificate of occupancy issued under this section shall be for not longer than a one-year period. However, such permit may be renewed by the Board of Adjustment annually after a hearing.
§ 217-122 Expiration of variances and time limits for further action.
[Amended 7-21-2003 by Ord. No. 23-03; 4-18-2011 by Ord. No. 03-11]
A.
A "c" variance granted by the Board of Adjustment in accordance with N.J.S.A. 40:55D-70(c) (but excepting any approval for a "c" variance which also involves "d" variance relief) permitting the erection or alteration of any structure or structures shall expire five years from the date of the publication of the notice of the determination of the Board of Adjustment unless such construction or alteration shall have been actually commenced and completed on each and every structure permitted by said variance. For good cause, the Board of Adjustment may, upon application, in writing, stating the reasons therefore, extend the five-year period.
B.
A "d" variance granted by the Board of Adjustment in accordance with N.J.S.A. 40:55D-70(d) permitting a specified use of any premises shall expire three years from the date of the publication of the notice of the determination of the Board of Adjustment unless such permitted use has actually been commenced and completed. For good cause, the Board of Adjustment may, upon application, in writing, stating the reasons therefore, extend the three-year period.
C.
If any design exceptions have been granted in accordance with N.J.S.A. 40:55D-51 in connection with either a "c" or a "d" variance, such design exceptions shall expire with the expiration of the variance.
D.
The running of the periods of limitation provided above shall be tolled from the date of filing an appeal from the decision of the Board of Adjustment to the governing body, or to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding.
E.
Except for permits issued pursuant to a "c" or "d" variance, if the issuance of a permit is finally approved or other action by the appellant or applicant is authorized, the necessary permit shall be secured and the authorized action of construction begun within one year after the date when the other action by the appellant or applicant is authorized, and the structure, building or alteration, as the case may be, shall be completed within three years of said date. For good cause, the Board of Adjustment may, upon application, in writing, stating the reasons therefor, extend the one-year or the three-year period.
F.
Should the appellant or applicant fail to obtain the necessary permit or permits within such periods prescribed in Subsections A through E above, or having obtained the same should he fail to commence or complete work thereunder within such periods prescribed in Subsections A through E above, or within such periods as may be extended by the Board of Adjustment, it shall be conclusively presumed that the appellant or applicant has waived, withdrawn and abandoned his appeal or his application, and all permissions, permits and variances granted to him shall be deemed automatically rescinded by the Board of Adjustment.