ZONING BOARD of ADJUSTMENT
The Zoning Board of Adjustment generally meets in the Meeting Room, 215 Millstone Road, Millstone Township, NJ on the fourth Wednesday of each month at 7:30 P.M. Due to holidays, the months of November and December are scheduled on an alternate date as oart of the adopted meeting schedule.
The Zoning Board of Adjustment conducts public hearings once a month to hear and decide upon applications for Zoning Code variances, appeals of the Zoning Officer's decisions, and interpretations of the Zoning Code. The Zoning Board is made up of seven regular and two alternate members all of whom are appointed by the Township Committee. In addition, the Zoning Board hires its own consultants at the beginning of each year when it reorganizes.
Individual homeowners may appear before the Zoning Board of Adjustment without legal counsel. Commercial applicants, however, are required to have legal representation. A Zoning Variance Application and checklist can be obtained from the Zoning Board Secretary in the Land Use Office. For additional information, please call 732-446-1936.
Application Forms (pdf) or Online Application (please have all necessary documents ready before starting your application, including pdf's of all forms, plans and reports, as the page will time out after approximately 10 minutes of inactivity).
RESIDENT INFORMATION REGARDING ZONING AND PLANNING BOARDS
The power to regulate land use in New Jersey was established by the New Jersey Constitution of 1947. That document grants the State Legislature authority to regulate land use. It also grants the State Legislature the authority to enact general laws under which municipalities may adopt zoning ordinances restricting uses to specified districts and controlling the extent of development including the bulk, height, number of stories, orientation, size, percentage of development area occupied by structures etc. The State Legislature has exercised that authority by enacting the Municipal Land Use Law (MLUL) which gives municipalities the right to adopt local land use regulations (Ordinances).
Land use ordinances generally create zone districts that control two things. The first is where you are permitted to locate specific uses. By example, a residential zone district will typically allow land to be developed with residential homes. A commercial zone will allow commercial uses such as offices and/or retail sales of merchandise. An industrial zone will allow manufacturing businesses.
The second is the intensity to which you can develop property for that use. A residential zone district may allow development of property with one single family home on one acre lots. Or it may allow ten condominium or apartment units on one acre. The latter is still residential, but is much more intense than the former.
Except for isolated single family residential homes, when someone wants to develop their land, they will likely require approval from municipal authority. Municipal agencies exercising authority over land use matters are either a Planning Board, a Zoning Board of Adjustment or a Unified Planning Board that exercises the authority of both a Zoning Board and Planning Board. Hereinafter they will be collectively identified as the “Board”. The usual procedure is that an owner has plans prepared for the development that they desire for their property. Those plans are reviewed by the Zoning Officer to determine whether Board approval is necessary and, if so, which Board is the proper one. If Board approval is required, the Owner is directed to file an application for the approval(s) they need.
If an applicant wants to divide a larger parcel into smaller lots, they will apply for “subdivision” approval. If they want to develop a parcel for commercial use such as an office or shopping-center, they will apply for “site plan” approval. In the event that they cannot comply with all of the applicable standards for that zone district or have a proposal that they believe is preferable, they may request a “variance” or “design waiver” from that standard.
Once the application is filed it undergoes a “Completeness” review to confirm that it has all of the information required by the Ordinance for the Board to make a decision whether to approve the application. That review is usually performed by the Board engineer. If it does not comply, it will be deemed “incomplete”, and the Owner is told what additional information is necessary. When the Owner has submitted all of the required information the application will be deemed “Complete” and scheduled for a public hearing.
An agenda is available before all meetings. It is posted on the municipal bulletin board at least 48 hours before the meeting. It may also be posted on the municipal website.
Each application is reviewed in accordance with the procedures of the MLUL. Zoning and Planning Boards are quasi-judicial bodies, and their procedures are similar to those used in a courtroom. The chairperson conducts the meeting similar to a judge and the Board is comparable to a jury that votes to make a final decision. All members of the Board are resident volunteers and serve in the public interest without compensation. Board members are required to complete a state-mandated training course, which is also available to the public. Each year Board members must file with the municipal clerk a financial disclosure statement which is required by the New Jersey Ethics Law.
The public may ask questions and comment on applications before the Board at the meeting. The timing of such questions and comments may depend on the complexity of the application. In general, less complex applications may only have one witness or property owner give testimony which is followed by Board questions, public questions and public comment. More complex applications may, at the discretion of the Chairperson, allow questions after each witness or may permit the applicant to present their entire case followed by public questions and comments.
Generally, questions of witnesses should be related to that witness’ testimony. Thus, questions of a traffic engineer will be limited to traffic issues. Questions of a landscape architect will be limited to landscaping. The public may comment on any aspect of the application during the public comment period at the close of the application or as otherwise indicated by the Board Chairperson.
APPLICATION PROCEDURES
When an application is announced by the Chairperson, the applicant or his/her attorney will come forward, identify themselves and swear/affirm that any testimony they give will be truthful. All witnesses are sworn under oath which is usually administered by the Board attorney, but may be administered by the Board Chairperson. The applicant or their attorney will present their witnesses in the order that they choose. Expert witnesses will be requested to state their credentials to confirm their field of expertise and qualifications. During or following the testimony of each witness the Board may ask questions and seek clarifications needed for an informed review of the application. The chairperson will then invite questions from the public regarding the testimony.
If a member of the public wishes to ask a question, they may raise their hand and will be called upon by the Board Chairperson. All members of the public will be asked to state their name and address before asking questions. The technical rules of evidence are not applicable to the hearing. However, the Board may exclude irrelevant, immaterial or unduly repetitious evidence. The Board may also limit the amount of time for questions or comments of the public to ensure adequate time for all members of the public to have the opportunity to ask questions. The same rules will apply when the public is asked for comments and all members of the public who wish to make a comment will be sworn under oath by the Board attorney or Chairperson.
The applicant has the right to cross-examine any members of the public who make comments. Written statements or letters from individuals who are not present, petitions or speaking on someone else’s behalf is not permitted. Written statements from the public in favor of, or in opposition to, an application are generally not accepted as the Board cannot cross-examine written statements. However, a member of the pubic may provide the Board with a written copy of their remarks after speaking and submitting to questions. Comments called out from the audience will not be considered part of the record.
The Chairperson has the right to close the public portion of a hearing if they determine that the audience is unruly or making comments not relevant to the application. The Chairperson also has the right to have any member of the audience removed from the hearing room for unruly behavior.
Hearings that are not completed at one meeting may be carried to a future meeting. When the applicant has concluded their presentation and Board and public questions and comments have been completed the Board will close the public portion of the hearing decide the application. Deliberation may be brief or lengthy. Board members will then offer a motion and second to either approve or deny the application followed by a roll call vote. Alternate members may fully participate in the hearing but may not vote except in the absence or disqualification of a regular member. Board members may, but are not required to, state the reasons for their vote on an application. The Board decision will be memorialized in a written resolution which sets forth the Board’s official findings of fact and conclusions of how the law applies to them. Anyone dissatisfied with the decision of the Board may file an appeal to the Superior Court of New Jersey seeking to overturn that decision.
CONSIDERATIONS FOR ACTION
Generally, there are three types of case that are presented to a Board. The first are subdivisions, which carve a larger property into smaller lots. The second are site plans, which set forth the design and layout of property being developed for commercial or multi-family uses. The third are variances to permit a proposed development to deviate from a specific zoning regulation. A variance may be an isolated application such as where a homeowner wants to place an addition to the rear of their house that is closer to the rear lot line than is permitted. Alternatively, a variance may be requested in conjunction with a subdivision or site plan application.
The land use ordinance establishes the “Rules” that govern how one can develop property. It includes controls over such things as the minimum required lot size, minimum distance a building has to be from front, side and rear property lines, maximum building height, maximum percent of building coverage, maximum percent of lot coverage, etc.. If an applicant plays by the “Rules” and complies with all applicable regulations, they are a conforming application and, absent other extenuating circumstances, are entitled to be approved.
If an application is not conforming and requires one or more variances or design standard waivers the Board must consider whether the application satisfies the statutory positive and negative criteria that permits them to deviate from the strict application of the development regulations. The statute acknowledges that property owners have the right to reasonable use of their property. Thus, the Statute gives the Board the authority to “relax” the Rules in appropriate circumstances.
There are specific positive criteria set forth in the MLUL and Court decisions that the Board must consider when evaluating whether to grant variance relief. For use variances the Board must decide whether there are “Special Reasons” that make the property “particularly suited” for the proposed use. If the use promotes the purposes of the MLUL as set forth in N.J.S.A. 40:55D-2 that factor may be weighed. The Board should focus on (1) why the location of the site within the municipality or region is particularly suited to the use despite the zoning and/or (2) what unique characteristics of the site make it particularly appropriate for the proposed use rather than a permitted use.
For dimensional variances such as building setbacks from property lines or exceeding permitted lot coverage the MLUL at N.J.S.A. 40:55D-70 sets forth specific positive criteria. Where (a) by exceptional narrowness, shallowness or shape of property, or (b) exceptional topographic conditions or physical features exist or (c) some other extraordinary situation affecting the property or the structures lawfully existing thereon exists that imposes a “Hardship” on the property that may satisfy the positive criteria for the grant of relief. The Statute also provides that where the purposes of the MLUL would be advanced by granting a variance, and the benefits of the deviation substantially outweigh any detriment, a variance may be granted.
As for the negative criteria, there are two. First, the Board has to determine whether the grant of the variance will result in a “Substantial” detriment to the public good. That is, will it result in a substantial change to the streetscape or the character of the surrounding neighborhood that is inconsistent. If they are substantial the variance may be denied. If the impacts are not substantial the variance may be granted. The focus is upon whether any negative impacts are substantial.
Second, the Board has to determine whether the grant of the variance will substantially impair the intent and purpose of the zone plan and zoning ordinance. Again, the focus is upon whether the variance will result in substantial adverse impacts upon the zone scheme and ordinance.
The Board must weigh all of these factors to arrive at a decision whether to grant an application. Each application is unique and must be decided upon its own specific facts and circumstances. Some applications may be relatively simple. Others may require much deliberation to reach a fair balance between the right of a property owner to the reasonable use of their property and right sof the community to have reasonable zoning regulations enforced.
Once the Board reaches a decision on the application that decision is memorialized in a written resolution which is usually written by the Board attorney and adopted at the next regular Board meeting and a notice of adoption published in the official newspaper of the Board. If the applicant, or a member of the public, disagrees with the resolution they may appeal the decision by filing a Complaint with the Superior Court of New Jersey. The appeal must be filed within 45 days of the publication of the notice of adoption in the newspaper. If not, it will be out of time and the complaint will be dismissed.