a. Establishment. The Planning Board presently in existence pursuant to Chapter 291, P.L. 1975 is hereby continued to consist of nine (9) members of the following four (4) classes:
Class I. The Mayor.
Class II. One of the officials of the Borough other than a member of the Borough Council 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 C. 40:56A-1 shall be deemed to be the Class II Planning Board member if there is both a member of the Zoning Board of Adjustment and a member of the Board of Education among the Class IV or alternate members.
Class III. A member of the Borough Council to be appointed by it.
Class IV Six (6) other citizens of the Borough to be appointed by the Mayor. The members of Class IV shall hold no other municipal office, except that one member may be a member of the Zoning Board of Adjustment and one may be a member of the Board of Education. A member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall be a Class IV Planning Board member unless there be among the Class IV or alternate 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 lie deemed to be the Class II member of the Planning Board.
Alternates. The Mayor shall also appoint two (2) alternate members who shall meet the qualifications of Class IV members. Alternate members shall be designated by the Mayor at the time of appointment as "Alternate No. 1" and "Alternate No. 2."
b. Terms. The term of the member composing Class I shall correspond with his official tenure. The terms of the members composing Class II and 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 a Class IV member who is also a member of the Environmental Commission shall be for three (3) years or terminate at the completion of his term of office 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 occurs first.
The terms of all Class IV members first appointed pursuant to this Chapter shall be so determined that to the greatest practicable extent the expiration of such term shall be evenly distributed over the first four (4) years after their appointment as determined by resolution of the Borough Council, provided, however, that no term of any member shall exceed four (4) years and further provided that nothing herein shall affect the term of any present member of the Planning Board, all of whom shall continue in office until the completion of the term for which they were appointed. Thereafter all Class IV members shall be appointed for terms of four (4) years, except as otherwise herein provided. All terms shall run from January 1 of the year in which the appointment was made.
c. Alternate Members; Powers; Terms of Office. The Mayor may appoint not more than two (2) alternate members with the advice of the Borough Council. Alternate members shall meet the qualifications of Class IV members of nine (9) member Planning Boards. Alternate members shall be designated at the time of appointment by the Mayor as "Alternate No. 1" and "Alternate No. 2." The terms of the alternate members shall be for two (2) years, except that the terms of the alternate members shall be such that the term of not more than one (1) alternate member shall expire in any one (1) year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two (2) years. A vacancy occurring otherwise than by expiration of term shall be filled by the appointing authority for the unexpired term only.
No alternate member shall be permitted to act on any matter in which he has either directly or indirectly any personal or financial interest. An alternate member may, after public hearing if he requests one, be removed by the governing body for cause.
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.
d. Conflicts. No member or alternate member of the Planning Board shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.
e. Vacancies. 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.
f. Removal. Any member other than a Class I member, after a public hearing, if he requests one, may be removed by the Borough Council for cause.
g. Organization of Board. The Planning Board shall elect a Chairman and Vice Chairman from the members of Class IV and select a Secretary who may be either a member of the Planning Board or a municipal employee designated by it.
h. Planning Board Attorney. There is hereby created the office of Planning Board Attorney. The Planning Board may annually appoint, fix the compensation of or agree upon the rate of compensation of the Planning Board Attorney who shall be an attorney other than the Borough Attorney.
i. Expenses, Experts and Staff. The Borough Council shall make provisions in its budget and appropriate funds for the expenses of the Planning Board. The Planning Board may also employ or contract for the services of experts and other staff and services as it may deem necessary. The Planning Board shall not, however, exceed, exclusive of gifts or grants, the amount appropriated by the Borough Council for its use.
j. Powers and Duties. The Planning 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. The Planning Board shall have the following powers and duties:
1. To make and adopt from time to time amend a master plan for the physical development of the municipality, including any areas outside its boundaries, which in the Board's judgment bear essential relation to the planning of the municipality, in accordance with the provisions of N.J.S.A. 40:55D-28.
2. To administer site plan and land subdivision review in accordance with the provisions of this Chapter and N.J.S.A. 40:55D-37 through 59.
3. To grant exceptions from certain requirements for subdivision and site plan approval pursuant to N.J.S.A. 40:55D-51.
4. To approve conditional use applications in accordance with the provisions of this Chapter and pursuant to N.J.S.A. 40:55D-67.
5. Prior to the adoption of a development regulation, revision, or amendment thereto, the Planning Board shall make and transmit to the Borough Council, within thirty-five (35) days after referral a report including recommendations concerning the proposed development regulation, revision, or amendment. The Borough Council, when considering the adoption of a development regulation, revision,. or amendment thereto, shall review the report of the Planning Board and may disapprove or change any recommendation by vote of a majority of its full authorized membership and shall record in its minutes the reasons for not following such recommendations. Failure of the Planning Board to transmit its report within the thirty-five (35) day period provided herein shall relieve the Borough Council from the requirements of this subsection in regard to the proposed development regulation, revision or amend- ment thereto referred to the Planning Board.
6. To participate in the preparation and review of programs or plans required by State or Federal law or regulations.
7. To assemble data on a continuing basis as part of a continuing planning process.
8. To annually prepare a program of municipal capital improvement projects over a term of six (6) years, and amendments thereto, and recommend same to the Borough Council pursuant to the provisions of N.J.S.A. 40:55D-29.
9. When reviewing applications for approval of subdivision plats, site plans or conditional uses, to grant to the same extent and subject to the same restrictions as the Zoning Board of Adjustment:
(a) Variances pursuant to N.J.S.A. 40:55D-70(c).
(b) Direction pursuant to N.J.S.A. 40:55D-34 for issuance of permit for building or structure in the bed of a mapped street or public drainage way, flood control basis or public area reserved pursuant to C. 40:55D-32.
(c) Direction pursuant to 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 a 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 of 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 approvals shall be granted unless the 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 this ordinance.
10. Review of capital projects pursuant to N.J.S.A. 40:55D.
11. To perform such other advisory duties as are assigned to it by ordinance or resolution of the governing body for the aid and assistance of the Borough Council or other agencies or officers.
12. The Borough Council may by ordinance provide for the reference of any matter or class of matters to the Planning Board before final action thereon by a municipal body or municipal officer having final authority thereon. Such reference shall not extend the time for action by the referring body, whether or not the Planning Board has submitted its report. Whenever the Planning Board shall have made a recommendation regarding a matter authorized by ordinance to another municipal body, such recommendation may be rejected only by a majority of the full authorized membership of such other body.
k. Time Limits for Action.
1. Minor Subdivision: Minor Subdivision approvals shall be granted or denied within forty-five (45) days of the date of submission of a complete application to the Administrative Officer or within such further time as may be consented to by the applicant. Approval of a minor subdivision shall expire one hundred ninety (190) days from the date of Planning Board approval unless within such period a plat in conformity with such approval and the provisions of the "Map Filing Law," or a deed clearly describing the approved minor subdivision, is tiled by the developer with the County Recording Officer, the Borough Engineer and the Borough Tax Assessor. Any such plat or deed must be signed by the Chairman and Secretary of the Planning Board before it will be accepted for filing by the County Recording Officer.
2. Minor Site Plans: Minor site plan approvals shall he granted or denied within forty-five (45) days of the date of submission of a complete application to the Administrative Officer or within such further time as may be consented to by the applicant. Minor site plan approval shall confer upon the applicant, the right that the general terms and conditions upon which minor site plan approval was granted shall not be changed for a period of two (2) years.
3. Preliminary Site Plan Approval: Upon the submission to the Administrative Officer of a complete application for a site plan which involves ten ( 10) acres of land or less, and ten (10) dwelling units or less, the Planning Board shall grant or deny preliminary approval within forty-five (45) days of the date of such submission or within such further time as may be consented to by the developer. Upon the submission of a complete application for a site plan which involves more than ten (10) acres, more than ten (10) dwelling units, the Planning Board shall grant or deny preliminary approval within ninety-five (95) days of the date of such submission or within such further time as may be consented to by the developer. Otherwise, the Planning Board shall be deemed to have granted preliminary approval of the site plan.
4. Preliminary Major Subdivision Approval: Upon submission of a complete application to the Administrative Officer for a subdivision of ten (10) or fewer lots, the Planning Board shall grant or deny preliminary approval within forty-five (45) days of the date of such submission or within such further time as may be consented to by the developer. Upon submission of a complete application to the Administrative Officer for a subdivision of more than ten (10) lots, the Planning Board shall grant or deny preliminary approval within ninety-five (95) days of the date of such submission or within such further time as may be consented to by the developer. Otherwise, the Planning Board shall be deemed to have granted preliminary approval of the major subdivision.
5. Effect of Preliminary Approval: Preliminary approval of a major subdivision or of a site plan shall, except as otherwise provided herein, confer upon the applicant the following rights for a three (3) year period from the date of the preliminary approval:
(a) That the general terms and conditions on which preliminary approval was granted shall not be changed, including but not limited to use requirements; layouts and design standards for streets, curbs and sidewalks, lot size; yard dimensions and off-tract improvements; and, in the case of a site plan, any requirements peculiar to site plan approval pursuant to N.J.S.A. 40:55D-41; except that nothing herein shall be construed to prevent the municipality from modifying by ordinance such general terms and conditions of preliminary approval as relate to public health and safety;
(b) That the applicant may submit for final approval on or before the expiration date of preliminary approval the whole or a section or sections of the preliminary subdivision plat or site plan, as the case may be; and
(c) That the applicant may apply for and the Planning Board may grant extensions on such preliminary approval for additional periods of at least one (1) year, but not to exceed a total extension of two (2) years, provided that if the design standards have been revised by ordinance, such revised standards shall govern.
(d) In the case of a subdivision of or site plan liar an area of fifty (50) acres or more, the Planning Board may grant the rights referred to in subparagraphs (a), (b) and (c) above for such period of time, longer than three (3) years, as shall be determined by the Planning Board to be reasonable taking into consideration (1) the number of dwelling units and nonresidential floor area permissible under preliminary approval, (2) economic conditions, and (:3) the comprehensiveness of the development. The applicant may apply thereafter and the Planning Board may thereafter grant an extension to preliminary approval for such additional period of time as shall be determined by the Planning Board to be reasonable taking into consideration (1) the number of dwelling units and nonresidential floor area permissible under preliminary approval, and (2) the potential number of dwelling units and nonresidential floor area permissible under preliminary approval, and (3) the potential number of dwelling units and nonresidential floor area of the section or sections awaiting final approval, (4) economic conditions and (5) the comprehensiveness of the development; provided that if the design standards have been revised, such revised standards shall govern.
6. Final Approval: Application for final subdivision or site plan approval shall be granted or denied within forty-five (45) days of submission of a complete application to the Administrative Officer or within such further time as may be consented to by the applicant.
Final approval of a major subdivision shall expire ninety-five (95) days from the date of signing of the plat unless within such period the plat shall have been duly filed by the developer with the County Recording Officer, the Borough Engineer and the Borough Tax Assessor. The Planning Board may, for good cause shown, extend the period for recording for an additional period not to exceed one hundred ninety (190) days from the date of signing of the plat.
7. Effect of Final Approval:
(a) The zoning requirements applicable to the preliminary approval first granted and all other rights conferred upon the developer at preliminary approval, whether conditionally or otherwise, shall not be changed for a period of two (2) years after the date of final approval; provided that in the case of major subdivision the rights conferred by this section shall expire if the plat has not been duly recorded within the required time period. If the developer has followed the standards prescribed for final approval and, in the case of a subdivision, has duly recorded the plat, the Planning Board may extend such period of protection fur extensions of one (1) year, but not to exceed three (3) extensions. Notwithstanding any other provisions of N.J.S.A. 40:55D-1 et seq., the granting of final approval terminates the time period of the rights conferred by preliminary approval for the section granted final approval.
(b) In the case of a subdivision or site plan for a planned unit development or planned unit residential development or residential cluster of fifty (50) acres or more or conventional subdivision or site plan for one hundred fifty (150) acres or more, the Planning Board may grant rights for such period of time, longer than two (2) years, as shall be determined by the Planning Board to be reasonable taking; into consideration (1) the number of dweling units and nonresidential floor area permissible under final approval, (2) economic conditions and (3) the comprehensiveness of the development. The developer may apply for thereafter, and the Planning Board may thereafter grant, an extension of final approval for such additional period of time as shall be determined by the Planning Board to be reasonable taking; into consideration (1) the number of dwelling; units and nonresidential floor area permissible under final approval, (2) the number of dwelling units and nonresidential floor area remaining to be developed, (3) economic conditions and (4) the comprehensiveness of the development.
8. Combined Preliminary and Final Major Subdivision or Site Plan Approval: An applicant may request and the Planning Board may consent to accept an application for development for combined preliminary and final major subdivision or site plan approval provided that:
(a) The proposed development is not to be constructed in sections or stages.
(b) The applicant pays the application fees and provides all submissions required for both preliminary and final applications.
(c) Any notice of hearing requirements applicable to the preliminary plat stage are complied with.
(d) The applicant consents to the time limits for action by the Board to be the greater of the limits set for either preliminary or final approval.
(e) The Board is satisfied that the scope of the project is not so large nor so complex as to require the additional review time which separate applications would provide.
Any approval granted by the Planning Board on such combined application shall confer upon the applicant all the rights set forth in this section for final approval.
9. Conditional Uses: The Planning Board shall grant or deny an application for a conditional use within ninety-five (95) days of submission of a complete application by a developer to the Administrative Officer, or within such further time as may be consented to by the applicant. The review by the Planning Board of a conditional use may also include site plan review. The time period for approval by the Planning Board of conditional uses shall apply to such site plan review.
10. Review in Lieu of Board of Adjustment: Whenever an application for approval of a subdivision plat, site plan or conditional use includes a request for relief pursuant to Subsection 25-3.1j, 9 (N.J.S.A. 40:55D-60) the Planning Board shall grant or deny approval of the application within one hundred twenty (120) days after submission by a developer of a complete application to the Administrative Officer or within such further time as may be consented to by the applicant. In the event that the developer elect, to submit separate consecutive application, the aforesaid provision shall apply to the application for approval of the variance or direction for issuance of a permit. The period for granting or denying and subsequent approval shall be as otherwise provided in these regulations and N.J.S.A. 40:55D-1 et seq.
11. Failure to Act: Failure of the Planning Board to act within the period prescribed shall constitute approval of the application and a certificate of the Administrative Officer as to the failure of the Planning Board to act shall be issued on request. of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval, herein required, and shall be so accepted by the County Recording Officer for purposes of filing subdivision plats.
12. Required Approval by County Planning Board: Whenever review or approval of the application by the Monmouth County Planning Board is required by N.J.S.A. 40:27-6.3 (County Planning Board Law), in the case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a site plan, the Planning Board shall condition any approval that it grants upon timely receipt of a favorable report on the application by the Monmouth County Planning Board or approval by the Monmouth County Planning Board by its failure to report thereon within the required time period.
l. Advisory Committee. The Mayor may appoint one or more persons as a Citizens Advisory Committee to assist or collaborate with the Planning Board in its duties, but such person or persons shall have no power to vote or take other action required by the Board. Such person or persons shall serve at the pleasure of the Mayor.
m. Environmental Commission. Whenever the Environmental Commission, if and when an Environmental Commission is established in the Borough, has prepared and submitted to the Planning Board an index of the natural resources of the municipality, the Planning Board shall make available to the Environmental Commission an informational copy of every application for development to the Planning Board. Failure of the Planning Board to make such informational copy available to the Environmental Commission shall not invalidate any hearing or proceeding.
n. Simultaneous Review. The Planning Board shall have the power to review and approve or deny conditional uses or site plans simultaneously with review for subdivision approval without the developer being required to make further application to the Planning Board, or the Planning Board being required to hold further hearings. The longest time period for action by the Planning Board, whether it be for subdivision, conditional use or site plan approval, shall apply. Whenever approval of a conditional use is requested by the developer, notice of the hearing on the plat shall include reference to the request for such conditional use.
o. Referrals from Zoning Board of Adjustment. The Planning Board shall receive and act on all referrals from the Zoning Board -of Adjustment in a timely manner so that the Zoning Board will receive the advice of the Planning Board within forty-five (45) days of the referral.
The Planning Board shall review the material referred and may make recommendations to the Zoning Board of Adjustment in writing and/or at the public hearing on the application. The Planning Board's recommendations may contain the Planning Board's opinion as to the compatibility of the proposal to the Master Plan; applications which may have been or are currently being processed by the Planning Board for similar uses; land use, traffic and other data relevant to the application which the Planning Board has in its files, and what conditions, if any, the Planning Board would recommend be imposed on the applicant to improve compatibility with the Master Plan and this Chapter should the Zoning Board of Adjustment grant the variance.
p. Continuance of Hearing and Voting Eligibility. A member of the Planning Board who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings; provided, however, that such Board member has available to him the transcript or recording of all of the hearing from which he was absent, and certifies in writing to the Board that he has read such transcript or listened to such recording.
q. Informal Review. At the request of the developer, the Planning Board shall grant an informal review of a concept plan for a development for which the developer intends to prepare and submit an application for development. The amount of any fees for such an informal review shall be a credit toward fees for review of the application for development.. The developer shall not be bound by any concept plan for which review is requested, and the Planning Board shall not be bound by any such review.
r. Notice of Default. An applicant shall comply with the provisions of this section whenever the applicant wishes to claim approval of his application for development by reason of the failure of the Municipal Agency to grant or deny approval within the time period provided in the "Municipal Land Use Law," P.L. 1975, c. 291 (C. 40:55D-1 et seq.) or any supplement thereto.
1. The applicant shall provide notice of the default approval to the Municipal Agency and to all those entitled to notice by personal service or certified mail of the hearing on the application for development; but for purposes of determining who is entitled to notice, the hearing on the application for development shall be deemed to have required public notice pursuant to Subsection a. of Section 7.1 of P.L. 1975, c. 291 (C. 40:55D-12).
2. The applicant shall arrange publication of a notice of the default approval in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality.
3. The applicant shall file an affidavit of proof of service and publication with the Administrative Officer, who in the case of a minor subdivision or final approval of a major subdivision, shall be the officer who issues certificates pursuant to Section 35, Subsection b. of Section 38 or Subsection c. of Section 63 of P.L. 1975, c. 291 (C. 40:55D-47; C. 40:55D-50; C. 40:55D-76), as the case may be.
(Ord. #686, S 13-3.1)
a. Establishment. The Zoning Board of Adjustment presently in existence pursuant to N.J.S.A. 40:55-D-1 et seq. is hereby continued to consist of seven (7) regular members and not more than four (4) alternate members all of whom shall be residents of the Borough appointed by the Mayor and confirmed by the Council.
b. Terms and Alternates.
1. The members of the Board of Adjustment shall continue until their respective terms expire. Thereafter, the term of each member shall be four (4) years from January 1 of the year of their appointment. The terms of members first appointed under this subsection shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be distributed, in the case of regular members, evenly over the first four (4) years after their appointment and, in the case of alternate members, evenly over the first two (2) years after their appointment; provided that the initial term of no regular member shall exceed four (4) years and that the initial term of no alternate member shall exceed two (2) years. Thereafter, the term of each regular member shall be four (4) years and the term of each alternate member shall be two (2) years. The terms of not more than two (2) alternates shall expire in any one (1) year.
2. The Mayor may appoint and the Borough Council confirm not more than four (4) alternate members who shall be designated at the time of their appointment as "Alternate No. 1", "Alternate No. 2", "Alternate No. 3" and "Alternate No. 4". Alternate members shall meet the same qualifications as regular members.
3. Alternate members may participate in all matters, 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 member is to vote, alternate members shall vote in the order of their numerical designations.
c. Conflicts. No member of the Board of Adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. No member may hold elective office or position under the municipality.
d. Vacancies. A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
e. Removal. A member may, after public hearing if he requests one, be removed by the Governing Body for cause.
f. Officers. The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary who may or may not be a Board member or another municipal employee.
g. 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 Borough Attorney. The Board shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the Governing Body for its use.
h. Expenses, Experts and Staff. The Governing Body shall make provision in its budget and appropriate funds for the expenses of the Board of Adjustment. 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 Governing Body for its use.
i. Rules and Regulations. The Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this ordinance.
j. Powers of the Zoning Board of Adjustment.
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 official or agency based on or made in the enforcement of the provisions of this Chapter adopted pursuant to N.J.S.A. 40:55D-62 through 68.
(1) Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of an administrative officer of the Borough based on or made in the enforcement of the zoning provisions of this Chapter or the Official Map: Such appeal shall be taken within twenty (20) days 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 papers constituting the record upon which the action appealed was taken. 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.
(2) 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 cases, proceedings shall not be stayed otherwise than by a 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.
(3) The Board of Adjustment may, in conformity with the provisions of N.J.S.A. 40:55D-1 et seq., 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 officer from whom the appeal was taken.
(b) Hear and decide requests for interpretation of the zoning map or Land Use Development Regulations 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 ordinance and N.J.S.A. 40:55D-1 et seq.
(c) (1) Where (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, (b) or 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 pursuant to N.J.S.A. 40:55D-46 would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the developer of each property, grant, upon an application or an appeal relating to such property, a vairance 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 purpose of this Chapter or the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) would be advanced by a deviation from the requirements of this Chapter and the benefits of this deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant N.J.S.A. 40:55D-62 through 40:55D-68; provided, however, that no variance from these departures enumerated in subparagraph (d) below (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 25-3.1j,9(a) (N.J.S.A. 40:55D-60a).
(d) In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to N.J.S.A. 40:55D-62 through 40:55D-68 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 Section 25-9 - Conditional Uses of this Chapter and N.J.S.A. 40:55D-67 (Conditional Uses; site plan review) pertaining solely to a conditional use, (4) an increase in the permitted floor area ratio as defined in Subsection 25-2.1, Definitions, of this Chapter and N.J.S.A. 40:55D-4, (5) an increase in the permitted density as defined in Subsection 25-2.1, Definitions, of this Chapter and 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 (2) dwelling unit buildings which lot or lots are either an isolated undersize lot or lots resulting from a minor subdivision. A variance under this subsection shall be granted only by an affirmative vote of at least five (5) members.
No variance or other relief may be granted under the terms of this subsection or N.J.S.A. 40:55D-70 unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and this 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 subsection permitting the creation or establishment of a nonconforming use which would be prohibited under the standards promulgated pursuant to the Act except under issuance of a permit by the Commissioner of Transportation. An application under this subsection may be referred to any appropriate person or agency for its report; provided that such reference shall not extend the period of time within which the Board of Adjustment shall act.
2. 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 59 or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever the proposed development requires approval by the Board of Adjustment of a variance pursuant to Subsection 25-2j,1(d) (N.J.S.A. 40:55D-70d). 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 this Chapter. The number of votes of board members required to grant any such subsequent approval shall be as otherwise provided in this Chapter and according to N.J.S.A. 40:55D-1 et seq. for the approval in question, and the special vote pursuant to N.J.S.A. 40:55D-70d (Subsection 25-2j,1(d)) shall not be required.
3. 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.
4. Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36 for a building or structure not related to a street.
k. Referral. Any application to the Zoning Board of Adjustment may be referred by the Zoning Board to any appropriate person or agency, Shade Tree Commission and the Environmental Commission for consideration and report, provided however, that such reference shall not extend the time within the Zoning Board of Adjustment is required to act:
1. If such reports are not received by the Zoning Board of Adjustment within forty-five (45) days from the date or dates of such references, the Zoning Board of Adjustment may proceed to act without further delay and without reference to such reports should they be received after the expiration of such fortyfive (45) day period.
2. When such a report is received from the Planning Board within forty-five (45) days, the Zoning Board of Adjustment shall take no action inconsistent therewith except by the affirmative vote of a majority of the fully authorized membership of the Zoning Board of Adjustment.
3. The report of the Shade Tree Commission, Environmental Commission or any other person or agency shall be advisory only.
l. Time for Decision.
1. Whenever an application for development requests relief pursuant to Subsection 25-3.2j, 1, 2, 3, or 4, the Board of Adjustment shall grant or deny approval of the application within one hundred twenty (120) days after submission by a developer of a complete application to the Administrative Officer or within such further time as may be consented to by the applicant. In the event that the developer elects to submit separate consecutive applications, the aforesaid provision shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise provided in this Chapter and N.J.S.A. 40:55D-1 et seq. Failure of the Board of Adjustment to act within the period described shall constitute approval of the application and a certificate of the Administrative Officer as to the failure of the Board of Adjustment to act shall be issued on request of the applicant, and it shall be sufficient in lieu of the written endorsement or other evidence of approval, herein required, and shall be so accepted by the County Recording Officer for purposes of filing subdivision plats.
2. Whenever review or approval of the application by the Monmouth County Planning Board is required by N.J.S.A. 40:27-6.3 (County Planning Board Law), in the case of a subdivision, or N.J.S.A. 40:27-6.6, in the case of a site plan, the Board of Adjustment shall condition any approval that it grants upon timely receipt of a favorable report on the application by the County Planning Board or approval by the County Planning Board by its failure to report thereon within the required time.
m. Expiration of Variance. Any variance hereafter granted by the Board of Adjustment permitting the erection or alteration of any structure or structures, or permitting a specified use of any premises shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by said.variance, or unless such development has actually been commenced, within a time period specified by the Board of Adjustment from the date of publication of the notice of the judgment or determination of the Board of Adjustment; except, however, that the running of the period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the Board of Adjustment to the Borough Council, or to a court of competent jurisdiction, until the termination in any manner of such appeal or proceeding. Where subdivision or site plan approval is required, the period of time for commencement of the development specified by the Board of Adjustment shall be the same as the period of time for which other rights are conferred upon the applicant by such subdivision or site plan approval pursuant to the provisions of this Chapter.
n. Continuance of Hearing and Voting Eligibility. A member of the Board of Adjustment who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings; provided, however, that such Board member has available to him the transcript or recording of all of the hearing from which he was absent, and certifies in writing to the Board that he has read such transcript or listened to such recording.
o. Annual Zoning Ordinance Report. The 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 on 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 Board of Adjustment shall send copies of the report and resolution to the governing body and Planning Board.
(Ord. #686, S 13-3.2; Ord. #1990-2, S 1; Ord. #2004-47, S 1)
