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On October 22, 2002 at the regular meeting of Bellmawr Mayor and Council, Ordinance No. #10:16-20 introduced and passed upon first reading.
If adopted, the Ordinance will abolish the Zoning Board of Adjustment and authorize the Planning Board to at as the Zoning Board of Adjustment as a Joint Land Use Board in all respects.
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The Ordinance will be further considered for final passage after a public hearing at a regular meeting of Borough Council on November 23, 2020 at 7:00 p.m.
If adopted, the Ordinance shall take effect on January 1, 2021.
Ordinance No. #10:16-20
Pursuant to N.J.S.A. 40:55D-25.c:
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(1), in a municipality with a population of 15,000 or less, a nine-member planning board may function as a board of adjustment, if provided by ordinance;
And whereas, of the 566 municipalities in New Jersey, there are 402 with a population of 15,000 or less, as of the 2000 census.
Thus, 71 percent of the municipalities in the state are eligible, by virtue of population size, to merge planning and zoning boards;
And whereas, when a planning board and zoning board are merged, the Class I (mayor or mayor’s designee) and Class III (member of the governing body) may not participate in the consideration of variances that involve use and certain height, density, and intensity measures, specifically “d” variances;
And whereas, when the combined board functions as a zoning board, its voting membership is reduced by two persons, who are or represent, elected officials;
And whereas, in New Jersey, a planning board and a zoning board have different roles with the planning board responsible for preparing the master plan, advising on zoning map and text amendments, approving conditional use permits, planned developments, subdivisions, site plans, and bulk and certain other variances (known as “flexible c” variances) intended to permit flexibility;
And Whereas, the planning board may also be involved in the review of the capital budget and capital improvement program upon the governing body’s request as well as making recommendations with respect to the official map and amendments to it and identify and review areas that are proposed as being “in need of redevelopment” for purposes of preparing and implementing a redevelopment plan;
And whereas, the granting of “d” variances in connection with any application for development, appeals and interpretations of the local development regulations are the sole province of the zoning board and such board also hears applications for buildings and structures in the beds of mapped streets, public drainageways, flood control basins, or reserved public areas and is also charged with preparing an annual report on variance activity to the governing board and the planning board;
And whereas, in summary, the planning board deals with what is permitted, but the zoning board deals with what is not permitted;
And Whereas, a joint board will permit Bellmawr Borough to achieve efficiency, cost savings through reduced number of professionals, reduction in the potential for conflict through misunderstandings between two boards and a simplified development review process;
And whereas, Mayor and Council believe there are no strong disadvantages.
Now, therefore be it ordained by the Mayor and Council of the Borough of Bellmawr, County of Camden and State of New Jersey as follows:
SECTION 1: Chapter 60 of the Code of the Borough of Bellmawr, entitled, Land Use Procedures is hereby amended to read as follows:
ARTICLE I. JOINT LAND USE BOARD § 60-1 Establishment. A. There is hereby established pursuant to the Municipal Land Use Law, P.L. 1975, c.291, the Borough of Bellmawr hereby established a Joint Land Use Board of nine members and two alternates consisting of the following four classes:
(1) Class I: The Mayor or his designee.
(2) Class II: One of the officials of the Borough other than a member of the governing body, to be appointed by the Mayor, provided that if there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Board as required by N.J.S.A. 40:56A-1 shall be deemed to be the Class II member in the event that there be among the Class IV or alternate members of the Board a member of the Board of Education.
(3) Class III: A member of the Borough Council to be appointed by it.
(4) Class IV: six other citizens of the Borough, to be appointed by the Mayor. The members of Class IV shall hold no other Borough office, except that one such member may be a member of the Board of Education.
The member of the Environmental Commission who is also a member of the Board as required by N.J.S.A. 40:56A-1 shall be a Class IV member unless there is among the Class IV or alternate members of the Board a member of the Board of Education, in which case the member common to the Board and the Environmental Commission shall be deemed a Class II member of the Board. B.
There may also be not more than two alternate members appointed to the Joint Land Use Board in the same manner as Class IV members who shall be designated as “Alternate No. 1,” “Alternate No. 2.” C. Alternate members may participate in discussion of the proceedings but may not vote except in the absence or disqualification of a regular member of any class.
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. D. The Class IV and alternate members shall hold no other municipal office position or employment in the municipality.
§ 60-2 Terms.
A. The terms of the member composing Class I shall correspond to the Mayor’s official tenure, or, if the member is the Mayor’s designee in the absence of the Mayor, the designee shall serve at the pleasure of the Mayor during the Mayor’s official tenure.
B. The terms of the members composing Class II and Class III shall be for one year or terminate at the completion of their respective terms of office, whichever occurs first.
C. The term of a Class II or Class IV member who is also a member of the Environmental Commission shall be for three years or terminate at the completion of the term of office as a member of the Environmental Commission, whichever occurs first.
The term of a Class IV member who is also a member of the Board of Education shall terminate whenever that person is no longer a member of such other body or at the completion of his Class IV term, whichever occurs first.
The terms of all Class IV members first appointed pursuant to this chapter shall be so determined that to the greatest practicable extent the expiration of such terms shall be distributed evenly over the first four years after their appointment, provided that the initial Class IV term of no member shall exceed four years.
The terms of all Class IV members first appointed under this section shall be as follows: two citizen members for two years whose term shall expire December 31, 2022; two citizen members for three years whose term shall expire December 31, 2023; and two citizen members for four years whose term shall expire December 31, 2024; thereafter, the term of each Class IV member shall be four years and shall run from January 1 of the year in which the appointment is made.
D. The Mayor shall appoint two alternate members to the Joint Land Use Board. The terms of alternate members shall be for two years except that of the alternate member first appointed, shall be appointed for a one-year term and the other shall be appointed for a two-year term, the terms to run from January 1 of the year in which the appointment is made.
Thereafter, all appointments shall be made for a term of two years.
E. No member of the Board shall be permitted to act on any matter in which he or she has, either directly or indirectly, any personal financial interest.
Any member other than the Class I member, after a public hearing, if he requests one, may be removed by the governing body for cause.
§ 60-3 Vacancies. In accordance with N.J.S.A. 40A:9-12.1, any member of the Board who fails to attend and participate at meetings of the Land Use Board, without being excused, for a period of eight consecutive weeks, or for four consecutive regular meetings, whichever shall be of longer duration, shall be deemed to have vacated their position.
If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment as above provided for the unexpired term.
§ 60-4 Organization of Board. The Land Use Board shall elect a Chairman and Vice-Chairman from the members of Class IV and select a secretary who may be either a member of the Land Use Board or a Borough employee designated by it.
§ 60-5 Land Use Board Attorney. There is hereby created the office of Land Use Board Attorney.
The Land Use Board may annually appoint, fix the compensation of or agree upon the rate of compensation of the Land Use Board Attorney who shall be an attorney other than the Borough Attorney.
§ 60-6 Experts and staff. The Land Use Board may also employ or contract for the services of experts and other staff and services as it may deem necessary.
The Board shall not, however, exceed, exclusive of gifts or grants, the amount appropriated by the Borough Council for its use.
§ 60-7 Powers and duties generally.
(1) The Joint Land Use Board shall exercise to the same extent and subject to the same restrictions all the powers of the Zoning Board of Adjustment and the Planning Board pursuant to the provisions of N.J.S.A. 40:55D-1 et seq.
(2) Appeals and variances; applications.
(a) Appeals to the Board may be taken by any interested party. Each appeal shall be taken within the 65 days prescribed by the statute for filing a notice of appeal with the officer from whom the appeal is taken, together with three copies of said notice with the Secretary of the Board. 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 Board without prior application to an administrative officer shall be filed with the administrative officer, including nine copies of the application, plot, plans, maps or other papers required by this chapter or any rule of the Board.
The applicant shall obtain all necessary forms from the administrative officer who shall inform the applicant of the steps to be taken to initiate proceedings, the regular meeting dates of the Board and the earliest date for a public hearing that is at least 14 days from the date of filing a complete application.
(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 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 cases, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the 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.
(d) Any application under any subsection 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 Board shall act.
(e) Power to reverse or modify decisions. In exercising its powers, the Board may reverse or affirm, wholly or partly, or may modify the action, order, requirements, decision, interpretation or determination appealed from and to that end have all the powers of the administrative officer from whom the appeal was taken.
(f) Time for decision.
The Board shall render its decision not later than 120 days after the date an appeal is taken or not later than 120 days after the submission of a complete application to the Board. Failure of the Board to render a decision within this period or within such further time as may be consented to by the applicant shall constitute a decision favorable to the applicant.
(g) Expiration of variance. In the granting of hardship and use variances, a time limit of one year from the date of the variance approval shall be set within which the owner shall secure a construction permit; otherwise, the variance granted shall be null and void.
The approving authority may, for good cause shown, extend the period for securing a construction permit for an additional period not exceeding six months.
(h) No variance or other relief may be granted under the terms of this section unless it can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and this chapter.
In respect to any airport hazard areas delineated under the Air Safety and Hazardous Zoning Act of 1983 (N.J.S.A. 6:1-80 et seq.), no variance or other relief may be granted which would be prohibited under the 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 Board shall act.
(i) The Board shall have such powers as are granted by law to:
[1] Hear and decide, by majority vote, 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 this chapter.
[2] Hear and decide, by majority vote, requests for interpretation of the Zoning Map or this chapter or for decisions upon other special questions upon which such Board is authorized by this chapter to pass.
(j) Variances. The Board shall have the power to:
[1] 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 in the zoning provisions of this chapter would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the developer of such property, grant, upon an application by an appeal relating to such property, a variance from such strict 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 the Municipal Land Use Law would be advanced by a deviation from the requirements of this chapter and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to the zoning regulations.
[3] Use variances. In particular cases and for special reasons, grant a variance to allow departure from the regulations contained in this chapter 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 N.J.S.A. 40:55D-67 pertaining solely to a conditional use, an increase in the permitted floor area ratio as defined in N.J.S.A. 40:55D-4, 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 lot or lots resulting from a minor subdivision, or a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district.
A variance under these provisions shall be granted only by affirmative vote of at least five members of the Board.
(k) Whenever an application for approval of a subdivision plat, site plan or conditional use includes a request for a variance or the issuance of a permit, the Board shall grant or deny approval of the application within 95 days after submission 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 or direction for issuance of a permit.
The period for granting or denying subsequent approval(s) of a subdivision, site plan or conditional use shall be as otherwise provided in this chapter.
Failure of the Board to act within this period shall constitute approval of the application.
(3) Directing the issuance of permits.
The Board shall:
(a) Direct the issuance of a permit for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area reserved on an adopted Official Map whenever one or more parcels of land located in these areas cannot yield a reasonable return to the owner unless a construction permit is granted, provided that the approval given will, as little as practicable, increase the cost of opening such street or tend to cause minimum change to the Official Map, and the Board shall impose reasonable requirements as a condition of granting the permit so as to promote the health, morals, safety and general welfare of the public.
(b) Direct the issuance of a permit for a building or structure not related to a street where the denial of the permit would entail practical difficulty or unnecessary hardship or the circumstances do not require the building or structure to be related to a street, except that the issuance of such a permit shall be subject to conditions that will provide adequate access for fire-fighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety and subject to conditions that will protect any future street layout shown on the Official Map or on a general circulation plan element of the Master Plan.
(4) Plan approval required; deviations from approved plan.
(a) In the event that the Board disapproves a development plan, no construction permit or certificate of occupancy shall be issued. Any applicant wishing to make a change in an approved application shall follow the same procedure as the original application.
(b) The Board shall permit a deviation from the final plan if caused by change of conditions beyond the control of the developer since the date of final approval and the deviation would not substantially alter the character of the development or substantially impair the intent and purpose of the Master Plan and this chapter.
(5) Master Plan. The Board shall make and adopt and, from time to time, amend a Master Plan for the physical development of the Borough, taking into account any areas outside its boundaries which in the Board’s judgment bear essential relation to the planning of the Borough in accordance with the provisions of N.J.S.A. 40:55D-28.
(6) Other.
(a) The Board shall administer the provisions of this chapter in accordance with the provisions of this chapter and the Municipal Land Use Law.
(b) The Board shall participate in the preparation and review of programs or plans required by state or federal law or regulations.
(c) The Board shall assemble data on a continuing basis as part of a continuous planning process.
(d) The Board shall consider and make report to the governing body within 35 days after referral as to any proposed development regulation submitted to it pursuant to the provisions of N.J.S.A. 40:55D-26a, and also pass upon other matters specifically referred to the Joint Land Use Board by the governing body pursuant to the provisions of N.J.S.A. 40:55D-26b.
(e) The Board shall perform such other advisory duties as are assigned to it by ordinance or resolution of the governing body for the aid and assistance of the governing body or other agencies or officers.
(f) If the Board or its Development Committee finds that an application for conventional site plan conforms to the definition of “minor site plan,” the Board may waive notice and public hearing requirements. Minor site plan approval shall be deemed to be final approval by the Board, provided that the Board or said Committee may condition such approval on terms ensuring the provision of improvements pursuant to N.J.S.A. 40:55D-38, 40:55D-39, 40:55D-41 and 40:55D-53.
(g) Whenever review or approval of the application by the County Planning Board is required by N.J.S.A. 40:27-6.6, the Board shall condition any approval 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 period.
§ 60-8 Organizational and administrative provisions.
(1) Organization of Board. The Joint Land Use Board shall elect a Chairman and Vice Chairman from the members of Class IV and a Secretary.
(2) Experts and staff. The Board may appoint, employ or contract for services of experts and staff as it may deem necessary. The Board shall not authorize expenditures which exceed, exclusive of the gifts or grants, the amount appropriated by the governing body for its use.
(3) Rules and regulations. The Board shall adopt such rules and regulations as are necessary to carry out its duties.
(4) Conflicts of interest. No member shall act on any matter in which the member has, either directly or indirectly, any personal or financial interest.
Whenever any member is disqualified, the member shall not continue to sit with the Board on the hearing of such matter nor participate in any discussion or decision relating thereto.
(5) Meetings.
(a) Meetings shall be scheduled no less than once a month, and any meeting shall be held as scheduled unless canceled for lack of applications for development to process.
(b) Special meetings may be called by the Chairman or on request of any two Board members, provided that there is notice to the members and the general public in accordance with law.
(c) No action shall be taken at any meeting without a quorum being present. All actions shall be by majority vote of a quorum except where a specified portion of the full authorized membership is required pursuant to N.J.S.A. 40:55D-9, 40:55D-26, 40:55D-34 and 40:55D-70d.
(d) All meetings shall be open to the public. Notice of meetings shall be given in accordance with the Open Public Meetings Act, Chapter 231 of the Laws of 1975.
(6) Minutes. Minutes of regular and special meetings shall be kept and shall include the names of persons appearing and addressing the Board and of persons appearing by attorney, the action taken, the findings, if any, and reasons therefor.
The minutes shall be available for public inspection during normal business hours at the office of the Borough Clerk.
Any interested party shall have the right to compel production of the minutes and be charged a fee for their reproduction.
(7) Hearings.
(a) Rules.
The Board may make rules governing the conduct of hearings. The rules shall be consistent with N.J.S.A. 40:55D-1 et seq. and this chapter.
The Board may waive the required notices and hearing for minor and exempt subdivisions and minor and exempt site plans, except where a variance or conditional use is part of the application.
(b) Oaths.
The presiding officer, or such person as he may designate, shall have power to administer oaths or issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties.
The provisions of the County and Municipal Investigations Law of 1953 (N.J.S.A. 2A:67A-1 et seq.) shall apply.
(c) Testimony.
The testimony of all witnesses shall be taken under oath or affirmation by the presiding officer and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.
(d) Evidence. Technical rules of evidence shall not be applicable, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
(e) Records. The Board shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means.
The Board shall furnish a transcript or duplicate recording in lieu thereof, upon the request of any interested party, at his expense.
(f) Certified court reporter. If an applicant desires a certified court reporter, the cost of recording testimony and transcribing it and providing a copy of the transcript to the Borough shall be at the expense of the applicant, who shall also arrange for the reporter’s attendance.
(g) When any application before the Board requires hearings at two or more meetings, a member of the Board who was absent for one or more of the meetings shall be eligible to vote on the matter, provided that such member has received a transcript or recording of the meeting(s) from which he/she was absent and certifies, in writing, to the Board that he/she has read such transcript or listened to such recording.
(8) Complete application and commencing applicable time periods.
(a) An application for development shall be complete for purposes of commencing the applicable time period for action at the time the application is certified complete by the Board.
In the event the application is not certified complete within 45 days of the date of its submission, the application shall be deemed complete upon the expiration of the forty-five-day period, after which the applicable time period for acting on the application shall begin, unless:
[1] The application lacks information indicated on a checklist adopted by ordinance and provided to the applicant.
[2] The approving authority has notified the applicant, in writing, of the deficiencies in the application within 45 days of submission of the application.
(b) The applicant may request that one or more of the submission requirements be waived, in which event, the approving authority shall grant or deny the request within 45 days.
(c) Nothing herein shall be construed as diminishing the applicant’s obligation to prove that he is entitled to approval of the application.
(d) The Board may subsequently require correction of any information found to be in error, submission of additional information not specified in the ordinance, and revisions in documents as are reasonably necessary to make an informed decision on whether the requirements have been met.
The application shall not be deemed incomplete for lack of any such additional information or revisions required by the Board.
(9) Decisions.
(a) Each decision on an application for development shall be reduced to writing, including findings of fact and conclusions thereon, by:
[1] A resolution adopted at a meeting held within the required time period for action on the application;
or [2] A memorializing resolution adopted at a meeting held not later than 45 days after the date of the meeting at which the Board voted to grant or deny approval.
Only the members who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution.
(b) An action resulting from the failure of a motion to approve an application shall be memorialized by a resolution, as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution.
(c) The vote on any such resolution shall be deemed to be a memorialization of the action of the Board and not to be an action of the Board.
However, the date of the adoption of the resolution shall constitute the date of the decision for purposes of mailings, filings and publications.
If the Board fails to adopt a resolution or memorializing resolution, any interested party may apply to the Superior Court in a summary manner for an order compelling the Borough agency to reduce its findings and conclusions to writing within a stated time, and the cost of the application, including attorney’s fees, shall be assessed against the Borough.
(10) Site Plan Review Advisory Board. The Joint Land Use Board Chairperson shall appoint three members of the Board to serve on the Site Plan Review Advisory Board and designate one as the Advisory Board Chairperson.
The Zoning Officer shall also serve on the Site Plan Review Advisory Board.
The Joint Land Use Board Engineer and Attorney will provide services on an as-needed basis. Persons appointed to the Advisory Board shall have no power to vote or take action required by the Joint Land Use Board.
The Advisory Board shall review subdivision and site plan applications and any other functions which the Board may refer to it to identify compliance or noncompliance with this chapter and to make recommendations to the Board.
The Committee shall provide advice to applicants and the Board concerning the compliance of the application for development with the design standards.
Persons on the Committee shall have no power to vote or take any action required by the Board unless otherwise an appointed member of said Board.
Nothing herein shall extend the time within which the Joint Land Use Board shall act pursuant to N.J.S.A. 40:55D-1 et seq. Section 3: The Provisions of Chapter 60, Land Use Procedures, Article II, Zoning Board of Adjustment §60-11 through §60-23 are hereby repealed in its entirety.
Section 4: A copy of this Ordinance shall be transmitted upon adoption to the County Planning Board.
Section 5:
All Ordinances or parts of Ordinances inconsistent with this Ordinance are hereby repealed to the extent of such inconsistency.
Section 6: If the provisions of any section, subsection, paragraph, subdivision, or clause of this Ordinance shall be judged invalid by a court of competent jurisdiction, such order of judgment shall not affect or invalidate the remainder of any section, subsection, paragraph, subdivision, or clause of this Ordinance.
Section 7: This Ordinance shall take effect on January 1, 2021.