What Does the Zoning Board Of Adjustment Do?
Zoning Board of Adjustment considers requests for relief from the existing Ordinances on matters of residential, commercial and industrial development. In general it strongly supports the character of the municipality and the aims of its long range planning efforts.
These aims are to maintain a community with a largely rural character with a good deal of open space and a minimum level of commercial or industrial development. This has resulted in considerable open space, the preservation of farming and horse-raising activities and large-lots. The Board of Adjustment decisions reflect these goals.
The powers and responsibilities of the Zoning Board of Adjustment are defined by the Municipal Land Use Law. The following are excerpts from the Municipal Land Use Law (New Jersey Statutes Annotated, Compiled as 40:55D - 1 et. seq. with amendments through the 1995 legislative session, updated October 1996).
57. Powers. 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 the zoning ordinance;
b. Hear and decide requests for interpretation of the zoning map or ordinance 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 act;
c. (1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) 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 article 8 of this act 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; (2) where in an application or appeal relating to a specific piece of property the purposes of this act would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to article 8 of this act; provided, however, that no variance from those departures enumerated in subsection d. of this section 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 a. of section 47 of this act; and
d. In particular cases for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act 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 54 of P.L.1975, c.291 (C.40:55D-67) pertaining solely to a conditional use, (4) an increase in the permitted floor area ratio as defined in section 3.1. of P.L.1975, c.291 (C.40:55D-4), (5) an increase in the permitted density as defined in section 3.1 of P.L.1975, c.291 (C.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 either an isolated undersized lot or lots resulting from a minor subdivision or (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board, pursuant to article 10 of this act.
If an application development requests one or more variances but not a variance for a purpose enumerated in subsection d. of this section, the decision on the requested variance or variances shall be rendered under subsection c. of this section.
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 purpose of the zone plan and zoning ordinance. In respect to any airport safety zones delineated under the "Air Safety and Zoning Act of 1983," P.L.1983, c.260 (C.6:1-80 et seq.), no variance or other relief may be granted under the terms of this section, permitting the creation or establishment of a nonconforming use which would be prohibited under standards promulgated pursuant to that act, except upon issuance of a permit by the Commissioner of Transportation. An application under 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.
L.1975,c.291,s.57; amended 1979,c.216,s.23; 1983,c.260,s.13; 1984,c.20,s.12; 1991,c.256,s.21; 1991,c.445,s.10.
40:55D-70.1. Annual 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.
L. 1985, c. 516, s. 16.
40:55D-70.2. Board of adjustment, determination; reasons
6. If, in the case of an appeal made pursuant to subsection a. of section 57 of P.L.1975, c.291 (C.40:55D-70), the board of adjustment determines there is an error in any order, requirement, decision or refusal made by the administrative officer pursuant to a report submitted by the historic preservation commission or planning board in accordance with section 25 of P.L.1985, c.216 (C.40:55D-111), the board of adjustment shall include the reasons for its determination in the findings of its decision thereon.
40:55D-71. Expenses and costs
a. The governing body shall make provision in its budget and appropriate funds for the expenses of the board of adjustment.
b. The board of adjustment may employ, or contract for, and fix the compensation of legal counsel, other than the municipal 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.
L.1975, c. 291, s. 58, eff. Aug. 1, 1976.
40:55D-72. Appeals and applications to board of adjustment
a. 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 the zoning ordinance or 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.
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.
L.1975, c. 291, s. 59, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 24.
40:55D-72.1. Continuation of application
Any application for development submitted to the board of adjustment pursuant to lawful authority before the effective date of an ordinance pursuant to subsection c. of section 16 of P.L. 1975, c. 291 (C. 40:55D-25) may be continued at the option of the applicant, and the board of adjustment shall have every power which it possessed before the effective date of the ordinance in regard to the application.
L. 1985, c. 516, s. 9.
40:55D-73. Time for decision
a. The board of adjustment shall render a decision not later than 120 days after the date (1) an appeal is taken from the decision of an administrative officer or (2) the submission of a complete application for development to the board of adjustment pursuant to section 59b. of this act.
b. Failure of the board to render a decision within such 120-day period or within such further time as may be consented to by the applicant, shall constitute a decision favorable to the applicant.
L.1975, c. 291, s. 60, eff. Aug. 1, 1976.
40:55D-74. 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.
L.1975, c. 291, s. 61, eff. Aug. 1, 1976.
40:55D-75. 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.
L.1975, c. 291, s. 62, eff. Aug. 1, 1976.
40:55D-76. Other powers
a. Sections 59 through 62 of this article shall apply to the power of the board of adjustment to:
(1) Direct issuance of a permit pursuant to section 25 of this act for a building or structure in the bed of a mapped street or public drainage way, flood control basin or public area reserved pursuant to section 23 of this act; or
(2) Direct issuance of a permit pursuant to section 27 of this act for a building or structure not related to a street.
b. 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 article 6 of this act or conditional use approval pursuant to section 54 of this act, whenever the proposed development requires approval by the board of adjustment of a variance pursuant to subsection d. of section 57 of this act (C. 40:55D-70). 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 zoning ordinance. The number of votes of board members required to grant any such subsequent approval shall be as otherwise provided in this act for the approval in question, and the special vote pursuant to the aforesaid subsection d. of section 57 shall not be required.
c. Whenever an application for development requests relief pursuant to subsection b. of this section, 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 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 act. Failure of the board of adjustment 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 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.
Whenever review or approval of the application by the county planning board is required by section 5 of P.L.1968, c. 285 (C. 40:27-6.3), in the case of a subdivision, or section 8 of P.L.1968, c. 285 (C. 40:27-6.6), in the case of a site plan, the municipal 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.
An application under 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.
L.1975, c. 291, s. 63, eff. Aug. 1, 1976. Amended by L.1979, c. 216, s. 25; L.1984, c. 20, s. 13, eff. March 22, 1984.