Township of Clark, NJ Article II Zoning Board of Adjustment

§ 195-11 Establishment; members.

A. A Zoning Board of Adjustment is hereby established pursuant to N.J.S.A. 40:55D-69, which shall consist of seven regular members and two alternate members. All members shall be residents of the Township and shall be appointed by the Township Council. No member of the Zoning Board of Adjustment may hold any elective office or position in the Township government.

B. Alternate members shall be designated at the time of appointment by the Council as "Alternate No. 1" and "Alternate No. 2."

C. Alternate members may participate in 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 member is to vote, Alternate No. 1 shall vote.

§ 195-12 Terms.

A. Regular members. The term of each regular member shall be four years. The terms of the members first appointed under this Part 1 shall be so determined that, to the greatest extent practicable, the expiration of such terms shall be distributed evenly over the first four years after their appointment, provided that the initial term shall not exceed four years.

B. Alternate members. The term of each alternate member shall be two years, except that the terms of the alternate members shall expire in alternate years.

§ 195-13 Vacancies.

If a vacancy occurs other than by expiration of term, it shall be filled by appointment as above provided for the unexpired term.

§ 195-14 Organization.

The Zoning Board of Adjustment shall elect a Chairperson and Vice Chairperson from among its members and shall also select a Secretary and an Assistant Secretary, who may be a Board member or a Township employee.

§ 195-15 Attorney.

The Zoning Board of Adjustment may annually appoint and, subject to the appropriation of funds, fix the compensation of or agree upon the rate of compensation of the Zoning Board of Adjustment Attorney, who shall be an attorney other than the Township Attorney.

§ 195-16 Experts and staff.

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.

§ 195-17 Expenditures.

The Zoning Board of Adjustment shall not authorize expenditures which exceed, exclusive of gifts and grants, the amount appropriated by the Township Council for its use.

§ 195-18 Powers.

The Zoning Board of Adjustment shall have the following powers:

A. To hear and decide appeals where it is alleged by the applicant 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 Part 3, Zoning.

B. To hear and decide requests for interpretation of the Zoning Map[1] or Part 3, Zoning, or for decisions upon special questions upon which such Board is authorized by Part 3, Zoning, to pass.

[1] Editor's Note: The Zoning Map is on file in the Township offices.

C. Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to Part 3, 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 of such regulation 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-60a.

D. Variances:

(1) In particular cases and for special reasons, to grant a variance to allow departure from regulations, pursuant to Part 3, Zoning, to permit:

(a) A use or principal structure in a district restricted against such use or principal structure.

(b) An expansion of a nonconforming use.

(c) Deviation from a specification or standard pursuant to N.J.S.A. 40:55D-67, pertaining solely to a conditional use.

(d) An increase in the permitted floor area ratio, as defined in N.J.S.A. 40:55D-4.

(e) An increase in the permitted density, as defined in N.J.S.A. 40:55D-4, except as applied to the required lot area for a lot or lots for detached one- or two-dwelling-unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision.

(2) A variance under this Subsection D shall be granted only by affirmative vote of at least five members.

E. To 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.

F. To direct issuance of a permit, pursuant to N.J.S.A. 40:55D-35, for a building or structure not related to a street.

G. Subdivision and site plan approval:

(1) 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 40:55D-59, 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 Subsection D of this section.

(2) No variance or other relief may be granted under the provisions of Subsections A through D of this section unless such variance or other relief can be granted without substantial detriment to the public good and shall not substantially impair the intent and purpose of the Zone Plan and Part 3, Zoning.

(3) 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 Zoning 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 Part 3, Zoning. The number of votes of Board members required to grant any such subsequent approval shall be as otherwise provided in the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., for the approval in question, and the special vote, pursuant to Subsection D, shall not be required. Any application under any provision of this section 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 Zoning Board of Adjustment shall act.

H. To adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this article and Part 3, Zoning.

I. It is further the intent of this Part 1 to confer upon the Zoning Board of Adjustment as full and complete powers as may lawfully be conferred upon such Board.

§ 195-19 Appeals and applications.

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 Township based on or made in the enforcement of Part 3, Zoning, or the Official Map. Each appeal shall be taken within the 20 days prescribed by N.J.S.A. 40:55D-72a by filing a notice of appeal with the officer from whom the appeal was taken, together with three copies of such notice with the Secretary of the Zoning Board of Adjustment. Such notice of appeal shall specify the grounds for the appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

B. Applications addressed to the original jurisdiction of the Zoning Board of Adjustment, without prior application to an administrative officer, shall be filed with the Secretary of the Zoning Board of Adjustment. Three copies of the application shall be filed. At the time of filing the appeal or application, but in no event less than 10 days prior to the date set for hearing, the applicant shall also file all plot plans, maps or other papers required by virtue of any provision of this Part 1 or any rule of the Zoning Board of Adjustment. The applicant shall obtain all necessary forms from the Secretary of the Zoning Board of Adjustment. The Secretary of the Board shall inform the applicant of the steps to be taken to initiate proceedings and of the regular meeting dates of the Board.

C. An appeal to the Board shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the officer from whom the appeal is taken certifies to the Zoning Board of Adjustment after the notice of appeal shall have been filed with him/her that, by reason of facts stated in the certificate, a stay would, in his/her opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Zoning 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 for good cause shown.

D. An appeal or application to the Zoning Board of Adjustment shall be complete for purposes of commencing the applicable time period for action by the Board when so certified by the Board or its authorized designee. In the event that the Board or designee does not certify the application to be complete within 45 days of the date of its submission, the application shall be deemed complete upon expiration of the forty-five-day period for purposes of commencing the applicable time period, unless:

(1) The application lacks information in the form and substance required by the checklist for the particular type of application, which list of requirements and forms shall be provided to the applicant; and

(2) The Zoning Board of Adjustment, or its designee, has notified the applicant, in writing, of the deficiencies in the application within 45 days of submission of the application. The applicant may request that one or more of the submission requirements be waived, in which event the Zoning Board of Adjustment shall grant or deny the request within 45 days. Nothing herein shall be construed as diminishing the applicant's obligation to prove in the application process that he/she is entitled to approval of the application. The Zoning Board of Adjustment may subsequently require correction of any information found to be in error and submission of additional information not specified in this Part 1 or any revisions in the accompanying documents as are reasonably necessary to make an informed decision as to whether the requirements necessary for approval of the application for development have been met. The application shall not be deemed incomplete for lack of any such additional information or any revisions in the accompanying documents so required by the Zoning Board of Adjustment.

§ 195-20 Reversal or modification on appeal.

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 make such other requirement, decision or determination as ought to be made and, to that end, have all the powers of the officer from whom the appeal was taken.

§ 195-21 Time for decision.

The Zoning 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 official or the submission of a complete application for development to the Board, pursuant to the provisions of N.J.S.A. 40:55D-70b. In the event that the developer elects to submit separate consecutive applications in accordance with the provisions of § 195-18G, the aforesaid provisions 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 Part 1. Failure of the Zoning Board of Adjustment to act within the period prescribed shall constitute approval of the application.

§ 195-22 Appeal to Township Council.

A. Any interested party may appeal to the Township Council any final decision of a Board of Adjustment approving an application for development pursuant to N.J.S.A. 40:55-70d. Such appeal shall be made within 10 days of the date of publication of such final decision, pursuant to § 195-32D. The appeal to the Township Council 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 name and address of his/her attorney, if represented. Such appeal shall be decided by the Township Council only upon the record established before the Board of Adjustment.

B. Notice of the meeting to review the record below shall be given by the Township Council, by personal service or certified mail, to the appellant, to those entitled to notice of a decision pursuant to § 195-30 and to the Board from which the appeal was taken at least 10 days prior to the date of the meeting. The parties may submit oral and written argument on the record at such meeting, and the Township Council shall provide for verbatim recording and transcripts of such meeting pursuant to § 195-29E.

C. Review of record.

(1) The Township Council shall conclude a review of the record below not later than 95 days from the date of publication of the notice of decision below, pursuant to § 195-32D, unless the applicant consents, in writing, to an extension of such period. The appellant shall:

(a) Within five days of service of the notice of appeal, pursuant to Subsection A hereof, arrange for a transcript, pursuant to N.J.S.A. 40:55D-10, for use by the Township Council and pay a deposit of $50 or the estimated cost of such transcription, whichever is less; or

(b) Within 35 days of service of the notice of appeal, submit a transcript as otherwise arranged to the Township Clerk. Otherwise, the appeal may be dismissed for failure to prosecute.

(2) Failure of the Township Council 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 applicant, shall constitute a decision affirming the action of the Board.

D. The Township Council may reverse, remand or affirm, wholly or in part, or may modify the final decision of the Board of Adjustment, as the case may be.

E. The affirmative vote of a majority of the full authorized membership of the Township Council shall be necessary to reverse, remand or modify any final action of the Board.

F. An appeal to the Township Council shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made, unless the Board of Adjustment certifies to the Township Council, after the notice of appeal shall have been filed with such Board, that, by reason 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 Board of Adjustment and on good cause shown.

G. The Township Council shall mail a copy of the decision to the appellant or, if represented, then to his/her attorney, without separate charge, and for a reasonable charge to any interested party who has requested it, not later than 10 days after the date the decision shall be published in the official newspaper of the Township. Such publication shall be arranged by the Township Clerk, provided that nothing contained herein shall be construed as preventing the applicant from arranging such publication of if he/she so desires. The Township Council may make a reasonable charge for such publication. The period of time in which an appeal to a court of competent jurisdiction may be made shall run from the first publication, whether arranged by the Township or the applicant.