The Planning Board shall exercise, to the same
extent and subject to the same restrictions, all the powers of a Board
of Adjustment, pursuant to N.J.S.A. 40:55D-25(c).
The Board shall adopt such rules and regulations
as may be necessary to carry into effect the provisions and purposes
of this article. 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.
Where the application for development involves
relief pursuant to Subsection d of N.J.S.A. 40:55D-70 (a "d" variance),
the Class I and Class III members shall be legislatively excluded
from participation and voting. The alternate member shall not sit
for the aforementioned Class I and Class III members whenever the
Board considers relief pursuant to Subsection d of N.J.S.A. 40:55D-70.
This reduction in voting membership preserves the statutory scheme
of N.J.S.A. 40:55D-70 requiring the affirmative vote of five members
of the statutory seven-member Board to grant a "d" variance.
A.
The powers of the Planning Board acting as a Board
of Adjustment shall be in accordance with N.J.S.A. 40:55D-69 and 40:55D-70
et seq., and amendments and supplements thereto, and with the provisions
of this article.
B.
It is further the intent of this article to confer
upon the Planning Board acting as a Board of Adjustment as full and
complete powers as may lawfully be conferred upon such Board, including,
but not by way of limitation, the authority, in connection with any
case, action or proceeding before the Board, to interpret and construe
the provisions of this article, or any term, clause, sentence or word
hereof, and the Zoning Map, in accordance with the general rules of
construction, applicable to legislative enactment.
C.
The Planning Board acting as a Board of Adjustment
may, in appropriate cases and subject to appropriate conditions and
safeguards, grant variances from the terms of this article in accordance
with the general or specific rules contained herein, and with the
general rules hereby laid down that equity shall be done in cases
where the strict construction of the provisions of this article would
work undue hardship. The powers and duties of the Board having been
delegated to and imposed upon it by statute, the Board shall in all
cases follow the provisions applicable to it in N.J.S.A. 40:55D-1
et seq. or subsequent statutes in such case made and provided, and
it shall from time to time furnish to any person requesting the same
a copy of its rules and information as to how appeals or applications
may properly be filed with the Board for its decision thereon.
A.
Appeals to the Planning Board acting as a Board of
Adjustment may be taken by any interested party. Each appeal shall
be taken within the 20 days prescribed by the statute by filing a
notice of appeal with the officer from whom the appeal was taken,
together with 20 copies of said notice with the Secretary. Said notice
of appeal shall specify the grounds for said appeal. The officer from
whom the appeal is taken shall forthwith transmit to the Board all
the papers constituting the record upon which the action appealed
from was taken.
B.
Applications addressed to the original jurisdiction of the Planning Board acting as a Board of Adjustment without prior application to an administrative officer shall be filed with the Secretary. Twenty copies of the application shall be filed. At the time of filing the appeal or application, the applicant shall also file 20 copies of all plot plans, maps, or other papers required by virtue of any provision of this article or any rule of the Planning Board acting as a Board of Adjustment. The applicant shall obtain all necessary forms from the Secretary who shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board. The filing deadlines for use variances and bulk variances ("c") for nonresidential properties shall be as provided in Article I, § 46-9, hereof. Applications for bulk variances for residential properties involving additions to an existing residential dwelling shall be submitted to the Secretary no less than 15 days prior to the requested hearing date. In addition to the required copies of the application, the applicant shall also submit the required number of copies of the plot plan showing the proposed work, the proper fee and escrow and any other supporting documents. The applicant shall also provide the statutory notice as set forth in Article III, § 46-27.
C.
An appeal stays all proceedings in furtherance of
the action in respect of which the decision appealed from was made,
unless the officer from whom the appeal is taken certifies to the
Planning Board acting as a 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
Planning Board 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.
In exercising the above-mentioned power, the
Planning Board acting as a Board of Adjustment may, in conformity
with the provisions of N.J.S.A. 40:55D-1 et seq. or amendments thereto
or subsequent statutes applying, reverse or affirm wholly or partly
or may modify the order, requirement, decision, or determination appealed
from, and make such other requirement, decision or determination as
ought to be made, and to that end have all the powers of the administrative
officer from whom the appeal was taken.
Any variance from the terms of this article
hereafter granted by the Planning Board acting as a 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 permitted use has actually been commenced, within one year 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, or to a court of competent jurisdiction, until
the termination in any manner of such appeal or proceeding.
The Planning Board acting as a Board of Adjustment
shall have such powers as are granted by law to:
A.
Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of Chapter 200, Zoning.
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 in Chapter 200, Zoning, would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner of such property, to grant upon an application or an appeal relating to such property, a variance from such strict application, so as to relieve such difficulties or hardship; provided, however, that no variance shall be granted under this subsection to allow a structure or use in a district restricted against such structure or use; and further provided 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 shall review a request for a variance pursuant to N.J.S.A. 40:55D-60.
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 the affirmative vote of at least 2/3 of the full authorized membership of the Board. No variance or other relief may be granted under the provisions 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 Chapter 200, Zoning. Any application under any subsection of 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.
A.
The Planning Board acting as a Board of Adjustment shall, in addition to the powers specified in § 46-19 of this article, have power given by law to:
(1)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34
for a building or structure in the bed of a mapped street or public
drainageway, flood control basin or public area reserved on the Official
Map.
(2)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-36
for a building or structure not related to a street.
B.
The Planning Board acting as a 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, or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever the Board is reviewing an application for approval of a use variance pursuant to Article II, § 46-19D, of this article.
The Planning Board acting as a Board of Adjustment
shall render its decision no 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 development to the Board
pursuant to the provisions of N.J.S.A. 40:55D-72. Failure of the Board
to render a decision within such one-hundred-twenty-day period or
within such other time as may be consented to by the applicant shall
constitute a decision favorable to the applicant.
