§ 26-11. ZONING BOARD OF ADJUSTMENT.

26-11.1 Establishment of Zoning Board of Adjustment.

a.

Membership. The Borough of Sayreville Zoning Board of Adjustment (herein referred to as the Board of Adjustment), shall consist of seven (7) regular members and two (2) alternate members, each of whom shall be residents of the Borough of Sayreville and shall be appointed by the Mayor with the advice and consent of the Borough Council. All regular members appointed shall serve for terms of four (4) years beginning January 1 of the year of their appointment.

b.

Alternate Members. Alternate members shall be appointed for a term of two (2) years, and at the time of their appointments shall be designated Alternate No. 1 and Alternate No. 2, respectively. 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.

c.

Other Municipal Office. No member of the Board of Adjustment shall hold any elective office or position under the municipality.

d.

Conflict of Interest. No member of the Board of Adjustment shall be permitted to act on any matter in which he or she has, either directly or indirectly, any personal or financial interest.

e.

Removal. A member, after a public hearing if requested, may be removed by the governing body for cause. A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.

f.

Election of Officers. The Board of Adjustment shall annually elect a chairperson and vice chairperson from its members and a secretary who may or may not be a member of the Board or a municipal employee.

g.

Substitute Members When Conflict Exists. If the Board of Adjustment lacks a quorum because its regular or alternate members are prohibited by N.J.S.A. 40:55D-69 from acting on a matter due to the member's personal or financial interest, Class IV members of the Planning Board shall be called upon to serve, for that matter only, as temporary members of the Board of Adjustment. The Class IV members of the Planning Board shall be called upon to serve in order of seniority of continuous service to the Planning Board until there are the minimum number of members necessary to constitute a quorum to act upon the matter without any personal or financial interest. If a choice has to be made between Class IV members of equal seniority, the Chairperson of the Planning Board shall make the choice.

h.

Legal Council and Other Professional Staff. 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 services as it shall deem necessary, not exceeding, exclusive of gifts and grants, the amount appropriated by the Borough Council for its use.

(Ord. #637-99)

26-11.2 Powers and Jurisdiction of Zoning Board of Adjustment.

a.

The Board of Adjustment shall have the following powers:

1.

Appeals. Hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, decision or refusal made by the Zoning Officer or any other Borough Official, based on or made in the enforcement of the zoning ordinance.

2.

Interpretations. 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 the MLUL.

3.

Bulk And Dimensional Variances.

(a)

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 zoning regulation would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the developer of such property, the Board may 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; or

(b)

Where in an application or appeal relating to a specific piece of property the purposes of zoning set forth in N.J.S.A. 40:55D-2 would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment, the Board may grant a variance to allow departure from such zoning requirements, provided, however, that the fact that a proposed use is an inherently beneficial use shall not be dispositive of a decision on a variance under this subsection a.3(a), and provided that no variance from those departures enumerated in subsection a.4. 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 the power to review a request for a variance pursuant to N.J.S.A. 40:SSD-60a.

4.

Use Variances. In particular cases and for special reasons, the Board may grant a variance to allow departure from zoning regulations to permit (1) a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a non-conforming use, (3) deviation from a specification or standard pursuant to N.J.S.A. 40:55D-67 pertaining solely to a conditional use, (4) an increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4, (5) 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 (1) or two (2) dwelling unit buildings which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision or (6) a height of a principal structure which exceeds by ten (10′) feet or ten (10%) percent 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 (5) members.

b.

Relief Not Enumerated in Subsection a.4. to be Decided Under Subsection a.3. If an application for development requests one or more variances but not a variance for a purpose enumerated in subsection a.4. of this section, the decision on the requested variance or variances shall be rendered under subsection a.3. of this section.

c.

Requirement for Showing of No Substantial Detriment. No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that 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 zoning ordinance.

d.

Referral of Application to Other Agencies. 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.

e.

Additional Powers. The Zoning Board of Adjustment shall have the following additional powers:

1.

To direct issuance of a permit pursuant to N.J.S.A. 40:SSD-34 for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area reserved pursuant to N.J.S.A. 40:55D-32.

2.

To 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.

To grant to the same extent and subject to the same restrictions as the Planning Board subdivision or site plan approval or conditional use approval whenever the proposed development requires approval by the Board of Adjustment of a variance pursuant to subsection 26-11.2.a.4. of this section. 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 of a site plan or subdivision by the Board of Adjustment. No such subsequent approval shall be granted unless such approval can be granted without substantial impairment to the public good and without substantial impairment to 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 chapter for the approval in question, and the special vote pursuant to N.J.S.A. 40:SSD-70d shall not be required.

f.

County Approval. Whenever review or approval of the application by the County Planning Board is required by N.J.S.A. 40:27-6.3, 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.

(Ord. #637-99)

26-11.3 Annual Report on Variances Heard by Zoning Board of Adjustment. 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 of 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 Borough Council and Planning Board.

(Ord. #637-99)

26-11.4 Appeals and Applications to Zoning Board of Adjustment.

a.

Time and Procedure for Appeal. Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of an official of the Borough of Sayreville based on or made in the enforcement of the Zoning Ordinance or Official Map. Such appeal shall be taken within twenty (20) days by filing a notice of appeal with the official from whom the appeal is taken, with nine (9) copies of the notice given to the Secretary of the Board of Adjustment. The notice shall specify the grounds for the appeal. The official 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.

Board of Adjustment Applications Without Prior Application to Administrative Officer. A developer may file an application for development with the Board of Adjustment for action under any of its powers without prior application to the Administrative Officer.

c.

Board Powers on Appeals. The Board 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 powers of the municipal official from whom the appeal is taken.

d.

Stay of Proceedings by Filing of Appeal. 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 municipal official from whose action the appeal is taken certifies to the Board, 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 of New Jersey upon notice to the municipal official from whom the appeal is taken and on due cause shown.

(Ord. #637-99)

26-11.5 Time Period for Action by Board of Adjustment.

a.

The Board shall render a decision not later than one hundred twenty (120) days after the date (1) an appeal is taken from a decision of the Administrative Office or other municipal official or (2) of the submission of a complete application for development to the Board of Adjustment, as the case may be.

b.

Failure of the Board to render a decision within such one hundred-twenty (120) day period or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.

c.

Time Limits For Decision . Whenever an application for development requests relief pursuant to subsection e.3. of subsection 26-11.2, 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 Board of Adjustment 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 one hundred twenty (120) day 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. Failure of the Board of Adjustment to act within the period prescribed shall constitute approval of the application, and a certificate of the Board of Adjustment Secretary as to the failure of the Board of Adjustment to act shall be issued on request of the applicant. 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.

(Ord. #637-99)