§ 4-68. Zoning Board of Adjustment., Article XIII. Separate Agencies and Boards Not Assigned, Chapter 4. Administration of Government, Part I. Administrative Legislation, Code of Ordinances, West Windsor

Establishment; membership; terms; officers; staff; rules; compensation.

(1)

Establishment. The Zoning Board of Adjustment heretofore created is continued and is hereby established pursuant to N.J.S.A. 40:55D-69 et seq. as the Board of Adjustment for the municipality.

(2)

Membership. The Zoning Board of Adjustment shall consist of seven regular members and two alternate members. All members including alternates shall be appointed by the Council. Alternate members shall be designated at the time of appointment "Alternate No. 1" and "Alternate No. 2."

[Amended 12-16-2019 by Ord. No. 2019-37]

(3)

Terms. The terms of the members first appointed 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 years after their appointment and in the case of alternate members evenly over the first two years after their appointment, provided that the initial term of no regular member shall exceed four years and that the initial term of no alternate member shall exceed two years. Thereafter, the term of each regular member shall be four years, and the term of each alternate member shall be two years. All terms of office shall run from January 1 of the year in which the appointment was made.

[Amended 10-22-2001 by Ord. No. 2001-20; 6-1-2010 by Ord. No. 2010-11]

Editor’s Note: This ordinance stated it would be effective 1-1-2011 as provided by Chapter 196 of the Laws of 2009.

(4)

Conflicts of interest; removal; vacancies. No member may hold any elective office or position under the municipality. No member of the Board of Adjustment shall be permitted to act on any matter in which the member has, either directly or indirectly, any personal or financial interest. A member may, after public hearing if the member requests it, be removed by the Council for cause. A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.

(5)

Officers. The Board of Adjustment shall elect a Chair and a Vice Chair from among its members and shall also select a secretary, who may but need not be a member of the Board or another municipal employee.

(6)

Attorney; staff and services. The office of the 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 Municipal Attorney. The Board may also employ or contract for and fix the compensation of such experts and other staff and services as it deems necessary. Obligations for the foregoing shall not exceed, exclusive of gifts or grants, the amount appropriated by the Council for the Board's use.

(7)

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 section. 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.

(8)

Compensation. Members shall receive no compensation for services.

[Added 4-19-1999 by Ord. No. 99-07]

Powers.

(1)

The powers of the Zoning Board of Adjustment shall be in accordance with N.J.S.A. 40:55D-70 et seq., and amendments and supplements thereto, and with the provisions of this chapter.

(2)

It is further the intent of this section to confer upon the Zoning Board of Adjustment as full and complete powers as may lawfully be conferred upon such Board, including, 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 chapter, or any term, clause, sentence or word hereof, and the Zoning Map, in accordance with the general rules of construction, applicable to legislative enactments.

(3)

The Board may in appropriate cases and subject to appropriate conditions and safeguards grant variances from the terms of this chapter in accordance with the general or specific rules contained herein and with the general rule hereby laid down that equity shall be done in cases where the strict construction of the provisions of this chapter 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 said N.J.S.A. 40:55D-1 et seq. and/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 whom appeals or applications may properly be filed with the Board for its decision thereon.

Appeals and applications.

(1)

Appeals to the 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 Part 4, Zoning, of Chapter 200, or the Official Map. Such appeal shall be taken within 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 the papers constituting the record upon which the action appealed from was taken.

(2)

Applications addressed to the original jurisdiction of the Board of Adjustment without prior application to an administrative officer shall be filed with the Secretary of the Zoning Board of Adjustment. Three or more 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 chapter or any rule of the 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.

(3)

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 that officer, 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.

[Amended 12-16-2019 by Ord. No. 2019-37]

Power to reverse or modify decisions. In exercising the above-mentioned power, the Board of Adjustment may, in conformity with the provisions of N.J.S.A. 40:55D-70 et seq. or amendments thereto or subsequent statutes applying, reverse or affirm wholly or partly or may modify the order, requirement, decision or determination as ought to be made, and to that end have all the powers of the zoning officer from whom the appeal was taken.

Expiration of variance. Any variance from the terms of this chapter 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 unless construction or alteration shall have 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 or such greater time limit as the Board may on a case by case basis grant upon showing of good cause made by the applicant. Time limits which have been determined in accordance with the foregoing may thereafter be extended upon application to the Board of Adjustment (with notice as required for variance hearings), provided that the application shall be made prior to the expiration of the time limitations sought to be extended. Upon a showing of good cause made by the applicant before the Board of Adjustment, the Board may extend the time limitation by resolution. The running of the period of time limitation provided shall be tolled from the date of filing on appeal from the decision of the Board of Adjustment to the court of competent jurisdiction until the termination of such appeal or proceeding.

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III).

Powers granted by law.

(1)

The 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 a zoning official or agency based on or made in the enforcement of Part 4, Zoning, of Chapter 200.

(b)

Hear and decide requests for interpretation of the Map or Part 4, Zoning, of Chapter 200 or for decisions upon other special questions upon which such Board is authorized by said Part 4, Zoning, to pass.

(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 Article 8 of N.J.S.A. 40:55D-1 et seq. 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.

(d)

Where in an application or appeal relating to a specific piece of property the purposes of N.J.S.A. 40:55D-1 et seq. would be advanced by a deviation from the requirements of Part 4, Zoning, of Chapter 200, and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to this chapter; provided, however, that no variance from those departures enumerated in Subsection F(1)(e) below 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 this chapter.

(e)

In particular cases and for special reasons grant a variance to allow departure from zoning regulations to permit a use or principal structure in a district restricted against such use or principal structure, an expansion of a nonconforming use, deviation from a specification or standard pursuant to § 200-147 of Chapter 200, Land Use, pertaining solely to a conditional use, an increase in the permitted floor area ratio as defined in § 200-4 or an increase in the permitted density as defined in § 200-4, 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. A variance under this subsection shall be granted only by affirmative vote of at least five members.

(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 the purpose of the zone plan and Part 4, Zoning, of Chapter 200. 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.

Additional powers. The Zoning Board of Adjustment shall, in addition to the powers specified in Subsection B, have power given by law to do the following:

(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.

(3)

Grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision or site plan approval or conditional use approval pursuant to this chapter whenever the proposed development requires approval by the Board of Adjustment of a variance pursuant to 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 granting 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 Part 4, Zoning, of Chapter 200. The number of votes of Board Members required to grant any such subsequent approval shall be otherwise provided in N.J.S.A. 40:55D-1 et seq. for the approval in question, and the special vote pursuant to the aforesaid N.J.S.A. 40:55D-70d shall not be required.

Time frame for decision.

(1)

The Board of Adjustment shall render its decision not later than 120 days after the date an appeal is taken from the decision of an administrative officer or after submission of a complete application for development.

(2)

Whenever an application for development requests relief pursuant to Subsection C, the Board of Adjustment shall grant or deny approval of the application within 120 days after submission by a developer of a complete application to the Zoning 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 N.J.S.A. 40:55D-1 et seq. Failure of the Board of Adjustment to act within the period prescribed shall constitute approval of the application and a certificate of the Zoning 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 accepted by the county recording officer for purposes of filing subdivision plats.